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Regular Second Appeal No.322 of 1966, decided on 9th October, 1984.
---S.25--Civil Procedure Code (V of 1908), S.100--Pre-emption suit- Fixation of sale price--Vendee's assertion about sale price disbelieved by two Courts below for his failure to prove same through reliable evidence--In absence of reliable evidence with regard to fixation of sale price or its payment as averred in sale-deed, same, held, was rightly disbelieved by two Courts below--Sale-deed by itself could not be accepted in proof of payment--Cash consideration paid before Sub-Registrar would be borne out as per certificate appended to sale-deed--Courts, held, rightly passed decree upon the amount found to have been actually paid by vendee--Appeal being devoid of merit was dismissed in circumstances.
S. Faqir Hussain for Appellants.
Nemo for Respondent.
Date of hearing: 9th October, 1984.
Amount of sale price is the only question raised in this appeal filed by the vendee-defendant Sain Allah Ditta (since died and represented by legal representatives) against the decree for possession through pre-emption of 50 Kanals 2 Marlas of agricultural land, situated in village Kot Miana, District Gujrat, passed in favour of the three plaintiff-respondents on payment of Rs.8,472 in respect of the sale thereof made in his favour by a registered deed, dated 23-1-1963 for an ostensible price of Rs.12,000 the break-up whereof, entered in the copy of sale-deed Exh.P.3 is:-
(i) Previous mortgage-money Rs.800.
(ii) Expenses of sale-deed Rs.150. (iii) Earnest money Rs.2,578.
(iv) Cash paid before the Sub-Registrar Rs.8,472.
2. Plaintiff produced five--yearly average of sale prices as Exh. P.I. showing Rs.194.69 as the price per Kanal of land. On the other side, vendee-defendant appeared as the solitary witness to make his own statement as D.W.2 wherein he deposed that he had paid Rs.2.821 as the earnest money for which he had even secured a receipt but none was produced in the Court and no witness even was examine; in support of the alleged payment of earnest money, assertion where about has been disbelieved by the two Courts below and rightly so, because there is no reliable evidence led with regard to the fixation of the sale price or its payment and the averment made in the sale-deed cannot be accepted in itself to be the proof of payment and, if the statement on the point made by the vendee himself was to be accepted, the total amount would exceed by Rs.243 of the ostensible sale price.
3. The cash consideration paid before the Sub-Registrar, as borne out by the certificate appended to the sale-deed, proves only Rs.8,472 to be the price paid for the land in suit. This amount can be accepted, to be even the market value which, under the circumstances was not in need of being determined separately. More particularly so, because this amount is not materially different from the one to be reached on the basis of the average of sale-prices. Therefore, the Courts below have not been wrong in passing the decree upon the payment of the amount found to have actually been paid.
4. There is no force in this appeal which is, accordingly dismissed. Since tile respondents have not put in appearance to contest the appeal in spite of service repeatedly effected on them, therefore, the parties are left to bear their own costs.
A. A./A-54/L Appeal dismissed.
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