Find a Lawyer

Regular Second Appeal No.373 of 1979, heard on 5th December 1984.

---S.15--Pre-emption suit--Land sold encumbered with mortgage-Question in dispute was whether sale price as determined by Courts below included mortgage debt and as such whether vendee was entitled to receive purchase money excluding amount of mortgage--Unusual on part of vendees to require vendors to get land redeemed after same was sold by them--Price paid to vendor would not include mortgage debt as it was for vendee to pay amount of debt to mortgagee after sale--Contention of pre-emptors that price of land paid by vendee to vendors included amount of mortgage money and that they were therefore, liable to pay only purchase money excluding amount of mortgage, held, without force. Ch.Muzammal Khan for Appellants. Muhammad Akbar Cheema for Respondent. Date of hearing: 5th December, 1984.

The appellants instituted a suit for possession through pre-emption of land measuring 31 Kanals 11 Marlas being 113/480 share of land comprising Khewat No.55, Khatuni No.84 to 92 as shown in the copy of Register Haqdaran 1970-71, situated in village Dholan, Tehsil Daska, District Sialkot, sold by Ghulam Rasul, Khushi Muhammad, Ghulam Nabi sons of Imam Din and Mat. Allah Rakhi and Mst. Mohabbat Bibi daughters of Imam Din by means of registered sale-deed dated 14-3-1975 for an ostensible price of Ra. 40,000. The appellants based their claim of superior right of pre-emption on the ground of being co-sharers in the Khata, out of which the land was sold, and also on account of being Owners in the estate in which the suit land was situated. They contended to that for Rs.8,000, which was also the market value of the land, and that the said price also included the amount of Rs.6,000, which was to be paid by the vendors to the mortgagee with whom a part of the land had been mortgaged. According the appellants they were entitled to deduct the aforementioned amount of Rvendorss.6,000 out of the sale price as the same had not been paid to the mortgage and the land was still under mortgage. 2. The suit was contested by the respondent on a number of grounds. He controverted the appellants allegation that he had paid Rs.18,000 only as the price of the land and that the said amount also a sum of Rs.6,000 for which the land had been mortgaged by the vendors. He contended that he had purchased the suit land for Rs.40,000, which amount was fixed as price of the land in good faith and was actually paid to the vendors. According to the respondent the market value of the land in question was not less than Rs.40,000. He claimed that he was also entitled to receive Rs.6,000 in addition to the sale price amounting to Rs.40,000 as he had got the land redeemed on payment of the aforementioned amount to the mortgagee after the sale. The learned trial Court framed as many as ten issues for the disposal of the suit but the relevant issues for the purpose of the present appeal are only issues No.7, 8 and 9, which are reproduced as under:-

(7) Whether the sale price Rs.40,000 was fixed in good faith or paid O.P.D.

(8) Whether the defendant has got the suit land redeemed by paying Rs.6,000 to the mortgagee O.P.D.

(9) What is the market value of the suit land O.P.P. 3. The learned trial Court decided issue No.7 in favour of the respondent and held that the amount of Rs.40,000 was fixed as the sale price of the land in question in good faith and was actually paid to the vendors. Issue No.8 was found against the respondent while no finding was given on issue No.9. The learned District Judge affirmed the findings of the learned trial Court on the aforementioned issues. The appellants have assailed the concurrent finding of the Courts below on issue No.7 in the present appeal in this Court and have contended that they were entitled to deduct the amount of Rs.6,000 out of the sale price determined by the Courts below in view of the fact that the respondent had not paid the aforementioned amount to the mortgagee and the land was still under mortgage. 4. The only point on which this appeal was admitted to regular hearing was whether the sale price amounting to Rs.40,000 as determined by the Courts below included the mortgage debt of Rs.6,000 and as such the respondent was entitled to receive Rs.34,000 only as purchase money. 5. Learned counsel for the appellants has contended that the recital in the sale-deed Ex.D.l to the effect that the land sold by the petitioners was free from encumberances was sufficient to show that the price of the land received by the vendors included the mortgage debt which they had to re-pay to the mortgagee because only then the land conveyed by them could be considered as free from encumberances. There is, however, no force in the above contention as Ghulam Rasul, one of the vendors, while appearing as D.W.2 has made a categorical statement that the price of the land amounting to Rs.40,000 received by them did not include the amount of Rs.6,000. In view of the above statement it is not possible to draw 'inference from the recital in the sale-deed referred to by the learned counsel for the appellants that the vendors had given any undertaking that the land would be got redeemed by them. Even otherwise it would have been quite unusual on the part of the respondent-vendee to require the vendors to get the land redeemed after it had been sold by them to him. The normal practice in such cases is that the price paid to the vendor does not include the mortgage debt as it is for the vendee to pay the amount of mortgage debt to the mortgagee after the sale. Learned counsel for the appellants has referred to the finding of the learned trial Court on issue No.8 and has contended that after rejecting the respondent's plea that he had got the land redeemed the learned trial Court should have accepted the appellants' version that the mortgage debt had to be discharged by the vendors out of the price received by them from the respondent. The above argument is also fallacious as the finding of the learned trial Court on issue No.8 against the respondent only showed that respondent's claim for Rs. 6000 which the allegedly paid to the mortgage and which he claimed in addition to the sale price of Rs.40,000 was not proved. By no stretch of imagination the above finding can be construed as a circumstance supporting the appellants contention that it was for the vendors to get the land redeemed and that the price received by them from the respondent also included the mortgagee debt to be paid to the mortgagee. 6. As noticed above the present appeal was admitted to regular hearing to consider only whether the price of the land paid to the vendors included the mortgage-debt also. The amount of the sale price determined by the Courts below was not disputed when the appeal wasl admitted. However, the appellants' contention that the respondent had received back the amount of Rs.22,000 after the registration of the sale-deed from the vendors, on the basis of which attempt has been made to assail the concurrent finding of Courts below on issue No.7, remains unsumbstantiated as no evidence has been brought on record by the appellants to prove the alleged return of a part of the sale price to the vendors. On the other hand Ghulam Rasul (D.W.2), who is one of the vendors, has denied in clear terms that they had returned the amount of Rs.22,000 to the respondent after the registration of the sale. For the foregoing reasons there is no force in the appellants contention that the price of the land paid by the respondent to the vendors included the amount of Rs.6,000 in which the land had been mortgaged and that they were liable to pay only Rs.34,000 to the respondent as the purchase money. Consequently, this appeal fails and is dismissed with costs. M.Y.H. Appeal dismissed.