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‑‑S. 25‑Pre‑emption suit‑Fixation of sale price‑Requirement -Where evidence as to payment of sale price contradicted recitals in sale‑deed as also endorsement made by Sub‑Registrar, Courts, held, would be justified to hold that sale price as mentioned in sale deed was neither fixed in good faith nor was actually paid to vendor ‑It would be necessary for Trial Court to record a separate determinative finding on market value of suit property in accordance with five years sale averages.

(b) Registration Act (XVl of 1908)‑

‑‑‑ S. 60 ‑ Sub‑Registrar's endorsement on document ‑ Effect Endorsement on document by Registering Authority, held, though carries presumption of truth between parties yet satire would be rebuttable.

(c) West Pakistan Land Revenue Act (XVII of 1967)‑

S. 164‑Constitution of Pakistan (1973), Art. 199‑Constitutional jurisdiction, exercise of‑Where on issue of market value, exercise of revisional jurisdiction by Board of Revenue was uncalled for against concurrent findings of fact by Courts below and in deroga tion to judicial precedents, High Court in constitutional jurisdiction set aside such finding of Board of Revenue and sustained those of lower Courts.

Malik Wahid Bakhsh v. Ch. Muhammad Shafi P L D 1976 Lah. 1069 and Hamesh Gul v. Nishan and another P L D 1966 (W P.) Pesh. 167 ref.

M. Bilal for Petitioners.

Bashir Ahmad Ansari for Respondent No. 1.

Date of hearing : 24th June, 1986.

This is an application under Article 199 of the Constitution by the plaintiff/pre‑emptor who seeks to have set aside order dated 29‑1‑1986, of learned Member (Revenue) and declared it to have been passed without lawful authority. It arises thus : ‑ Lal Khan sold property consisting of 49 Kanals 11 Marlas situated at Mouza Chohi Cihariala to Mansab Khan, for Rs. 65,000 through deed of sale registered on 19‑2‑1983. Noor Muhammad, Ashraf, Ali Bahadur, Rabani, sons of Muhammad Hussain, as tenants, in cultivatory possession of the suit property, claimed first offer of sale and pre‑empted the stile of suit property by instituting a suit against the vendee in the Court of Assistant Commissioner/Collector Attock, on R‑2‑1984. Plaintiffs offered to pay Rs. 20,000 as the sale price for the suit property which was also alleged to be its market value. Plaintiffs alleged that the sale price of Rs. 65,000 was falsely shown to have been fixed and paid to the vendor. Suit was resisted. It was pleaded in defence that plaintiffs were estopped to institute the suit for pre emption ; that the plaint was not adequately stamped and was liable to rejection. As regards merits, it was alleged that defendant had purchased suit property for Rs 65,000 and its sale price was actually paid. to the alienor. Defendant also pleaded that market value of the suit property was not less than the price paid i.e. Rs. 65,000. A sum of Rs. 6,000 was claimed 0 additional expenses incurred on the sale. Superior right was also denied. On the aforesaid pleadings, Court framed necessary issues, recorded evidence, and on its examination found that pre‑emptors were tenants of the suit property. Sale price was not found to have been fixed in good (with and actually paid to the vendor. In consequence, the Court determined market value of the suit property, and for this relied on sale averages and concluded that Rs. 42,573.36 was the market value of suit property' Suit, accordingly was decreed in favour of the plaintiffs on 21‑8‑1984 and the plaintiffs were ordered to pay/deposit the decretal amount in Court within one month failing which the suit was to stand dis missed. Vendee did not accept the findings of the trial Court and immediately preffered an appeal in the court of Additional Commissioner (Revenue). Appeal on failed on 6‑11‑1984 and the findings of trial Court were maintained in their entirety. Not satisfied, vendee went up in revision before the Boord of Revenue. From the reading of the impugned judgment, it appears that the contention of Mansab Khan, appellant as regards sole price and market value of the suit property found favour with the revisional Court which enhanced the decretal amount to Rs. 65,000 the price shown to have been paid to the registered sale‑deed. ‑ As regards sale price, learned Member in the impugned order observed.

"...I have beard the learned counsel for the parties and considered the facts of the case. It has been the consistent view of this Court that in pre‑emption suits the evidence of the recital of payment before the Sub‑Registrar has the presumption of truth and, in any the five years average is not an acceptable guide for the determination of the price of the suit land. In the instant case. sum of Rs. 65,000 was stated to have been paid in the recital of the registered deed whereas no evidence was led in rebuttal to establish that the price as determined by the trial Court on the basis of five years average was paid by the vendees. In view of this consideration I would accept the revision and determine the price of suit land at Rs. 65,000 as recited in the registered sale‑deed. The balance payment would be made by the respondents Noor Muhammad etc. within a period of sixty days from the date of these orders, failing which their pre‑emption suit would be deemed as dismissed.

In the constitutional petition, dispute between the parties is confined to the price payable for the suit property. Mr.. M. Bilal, Advocate, learned counsel for the petitioners contends that afore‑noticed observations of learned member not only run contrary to the plain provision of law but Are also against the pronouncements of the superior Courts. Further, contends that in the absence of satisfactory evidence as to the fixation and payment f sale price which in this case was totally wanting, sale averages had rightly been relied upon by the trial Court as well as the Court of appeal Counsel states that in such circumstances, this was the only legal add permissible course for Courts below to adopt and the learned Member had no legal justification to disturb the findings of the two Courts on issue of market value and to substitute its own opinion on wholly impermessible premises.

Mr. Bashir Ahmed Ansari, Advocate, on behalf of the respondent, vendee, states that endorsement on the deed of sale in itself was a strong piece of evidence to show sale price shown therein was actually paid by the vendee and learned Member had competence as well as jurisdiction to decide the issue of market value afresh and base his decision on the endorsement of the Sub‑Registrar.

Suit property was allegedly sold for Rs. 65,000 vide Exh. P. 2. It recites that the sale price was received by the vendee at his house. Not a penny was paid before the Sub‑Registrar. Endorsement records that receipt of entire sale price was acknowledged by the vendor before the Sub‑.Registrar. As against the recital in the sale‑deed and the endorsement appearing on deed of sale D. W. 1, a marginal witness of the deed had clearly deposed that the entire sale price of Rs. 65,000 was paid before the Sub‑Registrar. Similar was the statement of Amir Khan,‑special attorney of the vendee. It may not be without significance to state that Amir Khan was real father of the vendee. Defence evidence as to the payment of sale price contradicted the recital in the sale‑deed he also the endorsement made by the Sub‑Registrar. In the face of this contradictor and discrepant defence evidence, Courts below were justified to hold that the sale price of Rs. 65,000 was neither fixed in good faith nor w actually paid to the vendor. With these conclusions, it became necessary for them to record a separate determinative finding on the market value of the suit property. Asghar Ali, Halqa Patwari, in his statement proved sale averages Exh. P. 1. According to the sale averages placed on record the market value of the suit property came to Rs. 42,573.36 only. Perusal of Exh. P. 1 indicates that it has taken note of about 46 sale transactions spreading over a period of about 5 years. Apart from the sale average worked out by village Patwari in Exh. P. 1, there was no satisfactory evidence appearing on record to assist the decision of market value. Learned Assistant Commissioner as also learned Additional Commissioner, on first appeal, had found that Exh. P. 1, reflected the correct and true market value of the suit property and accordingly based their decision on it. However, when the matter went up in revision, learned Member, Board of Revenue, on the basis of the observations which have already been quoted above, found that the market value of the property was Rs. 65;000. This finding of the learned Member Board of Revenue had been seriously challenged in constitutional jurisdiction. Mr. M. Bilal, Advocate, endeavoured to press that endorsement was no evidence against the pre‑emptor whereas Mr. Bashir Ahmed Ansari, Advocate, strongly relied on section 60 of the Registration Act, to contend that the facts noted in the endorsement attracted presumption of truth and Member, Board of Revenue was right in relying on the aforenoticed presumption of law. In my opinion, the price entered in the deed of sale was no evidence as between the pre‑emptor and the vendee that the price was actually paid. Pre‑emptor being a stranger to the deed was not bound by what was contained therein. The onus of proving that the sale price entered in the sale‑deed was fixed in good faith and was paid actually rested solely upon the vendee and it was for him from the very outset to establish it with strict proof In case, he fails to established that the sale price shown in the deed was fixed in good faith and actually paid the Court is obliged to determine the market value of the suit property. It is true that the sale averages was not a correct and sure guid to find the correct market value of the suit property but then in the absence of any other material, to assist the Court in formulation of its opinion on this issue, they were justified in relying upon the five years sale averages filed by the village Patwari according to which the value of the suit land came to Rs. 42,573.36. As to the effect of Sub‑Registrar's endorsement, suffice it to say that though it carries a presumption o truth between the parties but the same was also rebuttable. Payment o sale price was not supported by any document in writing. In the absence of any evidence as to the payment of Rs. 65,000 Court below went wrong in basing its decision on the mere endorsement which simply carries the recital in the deed of sale that payment was received at home. As, for the impugned decision, suffice it to say that the learned Member, acted wholly against law in saying that endorsement in itself was a sufficient proof of the fixation and payment of the sale price or its market value. His observations, to speak with respects, lack support from law. In course of hearing of the constitutional petition. Mr. Bashir Ahmad Ansari, Advocate, found it difficult to defend the impugned order and requested that all the orders passed by the Courts below be set aside and case be remanded to the Assistant Commissioner with direction to record a fresh finding on market value. It was also argued that this was eminently a fit case in which the, Courts below should have taken suo motu recourse to the provisions of Order XXVI, rule 9, Civil Procedure Code for appointment of a Local Commissioner to ascertain the market value of the suit property. In this expression, learned counsel had virtually conceded that the decision of the Courts below was incorrect so far as, the determination of market value was concerned. Learned counsel requested for remand of the case back to the Court to Assistant Commis sioner. The course suggested by Mr. Bashir Ahmed Ansari, Advocate, was seriously objected to by Mr. M. Bilal. It was urged that at no stage when the matter was before the Courts below, Mansab Khan, vendee even invited the attention of the Courts for appointment of a Local Commis sioner and this argument was not open to him to urge in this Court. The contention has engaged my serious attention. However, after its careful consideration, I do not feel that the case required a remit. In my opinion, in the absence of any convincing material on the record to show that the vendee had paid Rs. 65,000 as sale price to the vendor, learned Assis tant Commissioner and Additional Commissioner rightly accepted the five years averages for resolving the issue of market value. Interference by learned Member, Board of Revenue in revisional jurisdiction was' .wholly uncalled for. His conclusions not only run contrary to the express provisions of law but also go against the judicial precedents. Refer p Malik Wahid Bakhsh v. Ch. Muhammad Shafi (P L D 1976 Lah. 1069), Hamesh Gul v. Nishan and another (P L D 1966 (W P.) Pesh. 167). Remand would have involved the parties into a fresh vortex of litigation which under no circumstances I was not inclined to permit. For the above various reasons, I find and hold that the impugned decision of learned Member, Board of Revenue cannot be maintained. It is se aside and is declared to have been made without lawful authority. Result is that decision of learned Additional Commissioner confirming the decision of the Assistant Commissioner shall hold the field and govern the rights of parties. No order as to costs

A. A. Petition allowed.

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