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Civil Revision No. 1025-D of 1984, decided on 7th June, 1986.

---S. 4--Suit for pre-emption- -Ostensible sale price--Burden of proof-Market value--Determination of--No allegation made with regard to an arrangement or understanding reached between vendor and vendee about return of a part of consideration after registration--No bondage between vendor and vendee shown to be existing whereby vendor may be supposed to have been under an obligation to return a part of substantial amount, to the retention whereof to himself, vendor had got a right upon completion of sale--No satisfactory evidence led with regard to market value of land in suit and only a few mutations were put in without making any effort to establish quality and productivity of those lands and their situation in comparison to land in suit--Without satisfactory evidence, such mutations, held, could not furnish a proper basis for determining market value. [Case-law referred].

Sardar Ata Ullah for Petitioner.

Wasim Sajjad for Respondent.

Dates of hearing: 24th October, 1984, and 7th June, 1986.

77 Kanals 12 Marlas of land situated in village Kallur, Tehsil sa-Khel, District Mianwali, sold to the respondent by means of registered sale-deed, dated 1-10-1980, for an ostensible price of Rs.1,56,000 was sued out to be pre-empted by the petitioner on the ground of his being a co-sharer of the vendor. He disputed the ostensible price as being in genuine and asserted that the sale had actually, been made for Rs.78,000 only which was also the market-value thereof. Vendee contested the suit by denying the claim of the plaintiff and also pleading estoppel by conduct against him. He reiterated the sale price to have been fixed in good faith and also actually paid. Trial Judge ultimately held that sale-price of Rs.1,56,000, even though paid before the Sub Registrar, had not been conclusively proved by any independent evidence to have been actually paid and a mere statement to that effect made by the vendee was not sufficient. He found that the average sale price of the land ranged from Rs.160 to Rs.1,060 per Kanal in the years 1980-81 and proceeded to hold the market-value of the suit land as Rs.82,620 on the payment whereof suit of the plaintiff was decreed. Vendee preferred an appeal there against in the District Court wherein a learned Additional District Judge held with reference to the registered sale-deed that the ostensible sale price had been proved to have been paid before the Sub-Registrar Consequently, he reversed the trial Court's finding under issue No. 5, which related to the fixation in good-faith or actual payment of the ostensible sale-price, and observing under issue No. 6 that market value of the suit land need not be determined accepted the appeal of the vendee to enhance the decretal amount t Rs.1,56,000.

2. Plaintiff has now come up to this Court on revision wherein the dispute is confined to the amount which the plaintiff may have to pal for the land. Since it was contended that the market-value determine by the trial Court should be the basis for his decree so that the increase made in the appeal below was not justified and it deserved to be decreased by Rs.73,380, therefore, following the rule of law laic down by a Full Bench of this Court in Waryam Singh v. Mehtab Single and others 19 I C 961 on account of the provision made in the Finance Act, 1973 regarding liability of civil revisions against decrees to bear court-fee leviable on appeals, I allowed the plaintiff-petitioner to pal court-fee on that valuation. He has paid it accordingly.

3. In consequence of the liability thus created in the petitioner to pay additional court-fee to make up the deficiency on a valuation o: Rs.73,380 his learned counsel had urged an additional ground for revision to the effect that the valuation of the vendee-respondent's appeal below had also to be similarly considered to be Rs.73,380 which being beyond the pecuniary limits of appellate jurisdiction of the District Court, hi; appeal below had been wrongly entertained and decided by an Additions District Judge. This contention overlooks the basic difference in the cases respectively urged by the respondent in his appeal below and the petitioner herein who is himself the successful pre-emptor and has challenged a part of the decree passed below to seek reduction in the amount required of him to be paid for taking the bargain and, as ha: been held in the aforecited Full Bench Judgment, followed in Wisanda Mal and others v. Ganesha Mal and others A I R 1916 Lah. 208, the amount representing the difference between the sum decreed and the one by which it is sought to be reduced became the subject-matter o his case and formed the value thereof; whereas the vendee-respondent had challenged the entire decree in his appeal below, challenging both the propriety thereof and the price determined thereunder and, hence, his appeal had to carry the same valuation as the plaint. So has been held in Bans Gopai Singh v. Sheo Bardan Singh and others A I R 1944 Oudh 276 on the basis of two judgments of this Court reported as Harichand v. Attar Singh A I R 1931 Lah. 490 and Nazar Muhammad v. Kala Ram and others A I R 1929 Lah. 190. Objection of the learned counsel for petitioner with regard to valuation is only misconceived and is accordingly repelled.

4. Learned counsel has argued the appeal on issues Nos. 5 and 6 only and it is contended that burden of proof of the former issue could be discharged by the vendee by proving either that the ostensible sale-price had been fixed in good -faith or that the same had been really paid so that it was not in genuine in the sense that nothing may have been returned to the vendor after the registration of the sale-deed but since there is not even an iota of evidence led with regard to fixation in good-faith of the ostensible sale-price, therefore, without having alleged and proved that no part thereof was taken back after the registration, a finding with regard to its having been really paid, could not be returned in favour of the vendee particularly when there is no explanation as to why he may have paid twice the market-value thereof. Learned counsel has elaborated this contention with the submission that since a pre-emptor is not a party to the sale deed, therefore he cannot be expected to lead district evidence about return of a part of the sale-price paid before the Sub-Registrar and hence, the only means by which he can prove such a payment to have been made for purposes only of show is with reference to the market-value of the suit land and that in this view of the matter, learned Additional District Judge has been in error in omitting altogether to determine the market-value of the suit land. He has relied on Khadam Hussain and others v. Gulab and another P L D 1954 Lah. 471, wherein it has been held by a Division Bench of this Court that only a genuine payment will satisfy the law. Emphasis of the learned counsel is that genuineness of a transaction can be satisfactorily determined only upon taking into consideration all the relevant factors. In the above-cited authority, the effect of a great disparity between the ostensible sale-price and the market-value came up for consideration which alongwith the absence of any explanation by the vendee, as to why he may have had to pay almost double the market-value of the land, was considered sufficient to justify the inference that the ostensible sale-price was fictitious.

5. In reply, learned counsel for respondent has argued that there is no reliable evidence led to prove the market-value of the suit land, therefore, there is no basis at all made out for assuming that there may be any disparity in the ostensible sale-price and market-value of the suit land so that the case of Khadam Hussain P L D 1954 Lah. 471, relied upon for the appellant, does not at all get attracted to this case. His contention is that the entire sale consideration having been paid before the Sub-Registrar, who has appended a certificate to that effect on the sale-deed, the actual payment thereof stands proved on account of the presumption of correctness attaching to his certificate, so that there did not arise any need for the vendee to also prove it to have been fixed in good-faith. He has placed reliance on Syed Abid Hussain Shah etc. v. Jalal Din etc. P L D 1981 Lah. 349 (D B), and has also relied on Khalid Bashir v. Fazal Abbas 1981 S C M R 701 and Malik Hussain and others v. Lala Ram Chand and others P L D 1970 SC 299 in support of the proposition that in this situation, it was not necessary for the Court to have determined market-value of the land.

6. For a number of reasons, effect is not possible to be given in this case to the above-noted contentions of the petitioner's learned counsel. Firstly, there has not been led any satisfactory evidence with regard to the market-value of the land in suit and only a few mutations have been put in by the petitioner without making any effort to establish the quality and productivity of those lands and their situation in comparison to the land in suit. Without such evidence those mutations cannot furnish a proper basis for determining market-value. Reference in this behalf may be made to a Division Bench judgment of this Court, reported as Syed Abid Hussain Shah etc. v. Jalal Din etc. P L D 1981 Lah. 349. Secondly, there is not even an allegation with regard to an arrangement or understanding reached between the vendor and the vendee about return of a part of the consideration, after the registration. Thirdly, there is no such bondage shown to be existing between them whereby vendor may be supposed to have been under an obligation to return a part of substantial amount, to the retention whereof to himself, the vendor had got a right upon completion of the sale.

7. In the above state of the petitioner's case, contentions of his learned counsel are only untenable and are accordingly repelled

8. In result , this revision is dismissed. No costs.

M.B.A. Revision dismissed.

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