SAVED ZAHID HUSSAIN, J.- Order dated 7.7.1999 of the learned Trial Judge, Chunian whereby he directed the petitioners/plaintiffs to make deposit of Rs. 16,33,334/- as Zar-i-Soem (1/3rd) of the value of the property mentioned in the mutation within one month has been challenged through this petition.
2. A mutation of exchange in respect of land measuring 111 Kanals 6 Marlas situated in Mozia Rasool Pur Chak No. 5 Tehsil Chunian District Kasur was sanctioned on 19.3.1999. The value of the property mentioned therein is Rs. 49,00,000/-. The petitioners filed a suit on 6.7.1999 for preemption in respect of the same that the same was indeed a sale and not exchange. It was taken up by the learned Trial Court on 7.7.1999. After scrutiny by the Reader and report the learned Trial Court passed an order directing .The petitioners to deposit Zar-i-Soem (1/3rd) of the value mentioned in the mutation within one month.
3. It is contended by the learned counsel for the petitioners that the value of the land mentioned in Column No. 12 of mutation as Rs. 49,00,000/- is inflated and the direction by the learned Judge to make deposit of Rs. 16,33,334/- as Zar-i-Soem (1/3rd) of the same is unwarranted and illegal. It is contended that the same is not the real value of the said property, therefore the learned Trial Court was obliged to determine the probable value of the property in terms of second proviso to Section 24 of the Punjab Pre-emption Act, 1991. The order has also been assailed on the ground that it does not show the application of mind by the Court.
4. The learned counsel for the contesting respondents who has entered appearance at the limine stage however contends that as the transaction had taken place through a mutation which described the value of the suit property at Rs. 49,00,000/- the learned Trial court acted in accordance with law in ordering the deposit of 1/3rd of the same. It is contended that the fixation of the probable value of the property is only required when the sale price is not mentioned in the sale deed or in the mutation or when it appears to the Court that the same is inflated. It is contended that the order was passed by the learned Judge in presence of the counsel for the plaintiffs but no objection was raised before the learned Trial Judge that the price mentioned in the mutation was inflated nor the matter was agitated by seeking review of the said order. He relies on Sher Bhadur Khan and another vs. Haji Walibat Khan and 7 others (PLJ 1992 Peshawar 3) to contend that the order which is of interlocutory nature cannot be interfered in revision jurisdiction.
5. In order to examine the validity of the order of the learned Trial Court passed under section 24 of the Act, reference to the relevant provisions of law is essential. It reads as follows:- "24. Plaintiff to deposit sale price of the property.
(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one- third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit; Provided further that if no sale price is mentioned in the sale deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third 'of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under sub-section (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed;
(3) Every sum deposited under-section (1) shall be available for the discharge of costs.
(4) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the preemptor."
Both the learned counsel state that there is no reported judgment on the point in issue under section 24 of the Punjab Pre-emption Act, 1991.
6. Some judgments are available on Section 24 of N.W.F.P. Pre- emption Act, 1987 which is almost analogous to Section 24 of Punjab Preemption Act, 1991. In Awal Noor vs. District Judge, Karak and 8 others (1992 SCM R 746) a suit for pre-emption had been filed in which the learned Trial Court fixed the probable value of the property and ordered the deposit of 1/3rd of the same as sale had not been incorporated in a sale deed or in a mutation. Later on the defendants appeared and claimed the value of the property differently as stated in a Tamassak.
The learned Trial Judge by a subsequent order directed the plaintiff to deposit an additional amount. This order was challenged in revision before the High Court by the plaintiff on the ground that after expiry of 30 days no order for further deposit of 1/3rd amount could he passed which was dismissed. In appeal before the Hon'ble Supreme Court, the second proviso to Section 24 of N.W.F.P.
Pre-emption Act, 1987 was considered and it was observed as follows:- "The second proviso also is restrictive in nature. Those cases in which the sale price is neither in the sale-deed nor in the mutation and also in those cases as in the present one in which there was at the relevant time neither a sale-deed nor a mutation, the Court has to rely on its own judgment after an enquiry of preliminary/summary nature seeking material from the plaintiff and if per chance the defendant has appeared from him also. The determination of the value of the property in these circumstances, of course, has to he probable. Thus the intention of the newly enacted law in this behalf is clear that the amount has to be deposited upto 30th day of the filing of the suit and not beyond that and the amount has to be determined through a process of approximation resulting in the probable value if there is nothing mentioned in the sale deed or the mutation."
7. In Hahibullah Khan vs. Amir Zaman and 9 others (1995 SCM R 135) it was laid down that:- "The bare reading thereof makes it amply clear that the Court had to determine the probable value of the property only if no sale price had been mentioned in the sale deed or in the mutation, Meaning thereby that if the sale consideration was mentioned in the documents of transfer, the Court had no discretion in the matter and was bound to pass the order for deposit according to subsection (1) of section 24." (underlined by me for emphasis).
4 8. In the case of Sher Bahadur Khan supra, it was held that the Court is under obligation to direct to the plaintiff to deposit one-third of the sale price of the property in cash, on the basis of the price mentioned in the sale deed or in the mutation. It was further held that the question of actual payment of price or its fixation in good faith or about market value of land are to be resolved at the time of Trial as envisaged by Sections 27 and 28 of the Act and not at the initial stage of the suit.
9. The precedents referred to above do furnish a useful basis for understanding the object, purpose and intention of the legislature. It is dearly indicative that the process of approximation to fix the probable value of the property is to be resorted if the sale price is not mentioned in the sale deed or in the mutation. Whereas Subsection (1) of Section 24. Obliges the Court to require the plaintiff to deposit 1/3rd of the sale price of the property in cash within 30 days, the proviso empowers the Court to fix the probable value when the sale price is not mentioned in the sale deed or in the mutation or when the price so mentioned appears to be inflated. The later part of the proviso cames into play only when it appears to the Court that the sale price mentioned in the sale deed or in the mutation is inflated. Otherwise almost in every suit the sale price mentioned in the sale deed or in the mutation would be assailed asking the Court to fix a probable value of the property to avoid the mandatory requirement of deposit under Section 24(1) of the Act. This cannot be the intention of the law. The official documents such as sale deed or mutation authenticated by the public functionaries have a presumption of correctness and cannot be disregarded merely on the assertion of a non-party to the transaction. It. Is the Court only when it appears to it that the price mentioned in the sale deed or the mutation is inflated, that the process of approximation of proable value is to be adopted.
10. In the present case mutation which mentioned the value of the property was before the Court. It was made basis for directing the petitioners/plaintiffs to make deposit of I/3rd of the same. This order was passed in the presence of the learned counsel for the plaintiffs but no objection was raised before the learned Trial Judge that the price so mentioned in the mutation was inflated.
Even no application was made after passing of the said order before the learned Trial Judge in the nature of review. In the circumstances, I do not find any illegality having been committed by the learned Trial Judge in ordering the deposit of 1/3rd of the value of the property mentioned in the mutation.
11. I may be noted that the direction for deposit of 1/3rd of the price is although mandatory under section 24(1) of the Act yet as to the real value of the property it is not final and is of tentative nature. Section 27 of the Act empowers the Court to determine the market value of the property.
The criteria for determining the market value is laid down in Section 28 of the Act. The consequences of such a determination are taken care of by Section 25 of the Act. All this shows that a detailed enquiry as to the determination of the market value of property is part of the trial of the suit when the parties concerned get an opportunity to prove their respective pleas. Thus, notwithstanding the compliance of order under Section 24 of the Act by the plaintiff it can be proved that market value is different than the one mentioned in the deed or mutation.
12. The learned counsel for the petitioners has produced an affidavit of Abdul Rauf son of Sardar A.I to show that the land had indeed been sold for Rs. 9,00,000/-. However the learned counsel for the respondents has produced an affidavit by Sardar A.I contradicting the depositions of Abdul Rauf. I am not inclined to comment upon the assertion of either of the deponents at this stage which is a matter of evidence and for the learned Trial Court to come to a conclusion on receiving evidence led by the parties and its appreciation.
For the above reasons, I do not find any merit in this petition, which is accordingly dismissed.