RAHEEM KHAN through Legal Heirss vs HABIB KHAN and another

' This civil revision assails judgments and decrees, dated 11-1-1997 and 19-3-1997 passed by the learned Civil Judge and learned District Judge, Kasur, whereby they decided Issue No,4 against the petitioners and ordered them to deposit an amount of Rs,1,65,000 as preemption money.

2. Precisely, relevant facts are that deceased Rahim Khan, predecessor-in-interest of the petitioners pre-empted sale effected through registered sale-deed, dated 24-8-1995 for an amount of Rs,1,50,000. The pre-emptor claimed his superior right being co-sharer (Shafi Sharik) of the Khata in question. He asserted in the plaint that on acquiring knowledge of the sale, he immediately exclaimed his intention to file pre-emption suit and by sending a notice of "Talb-i- Ishhad" attested by truthful witnesses he fulfilled the requirements of law. He also averred that sale in question, as a matter of fact, was effected for an amount of Rs,50,000 and the remaining amount of Rs,1,00,000 was shown only to save the sale transaction from pre-emption, to the disadvantage of the pre-emptor.

3. The respondents being defendants in the suit, denied the assertions in the plaint by filing their written statement wherein they also raised preliminary objections like lack of cause of action and approach to the Courts with unclean hands by the petitioners. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter, after doing the needful decreed the suit of the predecessor of the petitioners for an amount of Rs,1,65,000 including incidental charges which was to be deposited by him within a period of 30 days after deducting Zar-e-Soim, if any, already deposited.

4. Predecessor-in-interest of the petitioners aggrieved of the decision of the trial Court regarding payment of sale price of Rs,1,65,000 touching Issue No,4, filed an appeal before the learned District Judge which was dismissed on 19-3-1997. Predecessor of the petitioners thereafter filed instant revision petition challenging the concurrent judgments and decrees of two Courts and it was admitted to regular hearing and now has been fixed for final determination. Pending this revision petition Rahim Khan petitioner died and in his place, his heirs/legal representatives were impleaded.

5. Learned counsel for the petitioners submits that there was sufficient evidence on the file, showing that respondents after paying the alleged sale price before the Sub-Registrar, received back an amount of Rs,1,00,000 from the vendor. It has also been contended that the Courts below have incorrectly not determined the market value of the land in question and thus, returned incorrect findings on Issue No,4. He further contended that documentary evidence on the file showing that the price alleged to have been paid is excessive, which has not been considered in its true perspective.

6. Learned counsel for the respondents refuted the assertions of the petitioners, supported the concurrent judgments and decrees of the two Courts below and urged that the petitioners had neither paid any court-fee before the Appellate Court nor they have affixed any court-fee on the memorandum of revision petition before this Court, whereas under law, court-fee was payable on the amount, which was sought to be reduced. He further submits that price shown in the sale- deed, subject of suit, is of much more value than the one mentioned. He also refuted the assertions of the petitioners that any amount was received back by the vendees. He submitted that there is no evidence, at all, showing that they received the amount from the vendor, after registration of sale-deed. It is also a submission of the respondents that petitioners in order to refute price mentioned in the registered sale-deed, were required to produce chart of market value prepared by the Revenue Department, in absence of which, price mentioned in the sale-deed is to be accepted.

7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record. Sale in question was effected through a registered sale-deed, where over Sub-Registrar concerned inscribed a certificate certifying payment of entire sale price of Rs,1,50,000 in his presence. Petitioners did not produce any evidence on the file to show that this certificate was incorrectly inscribed or is contrary to the market value prevalent in the area. This certificate was given by the Sub-Registrar while discharging official duties to which a presumption of correctness is attached under law. In, similar situation this Court while deciding case of Pirla and others v. Noora and others PLD 1976 Lah. 6, held that certificate of Sub-Registrar carries a presumption of payment of price. Petitioners produced copy of registered sale-deed dated 5-1- 1990 Exh.P.2 in order to show that price shown in sale-deed Exh.D.1 is invalid. Exh.P.2 is subject of another suit for pre-emption, besides which there is no evidence showing that both the lands, one subject of instant suit and the other included in Exh.P.2 are of the same value and are located at similar position.

8. The petitioners in order to prove market value, were to produce five years average worked out on the basis of sales effected in the vicinity, but this exercise was not undertaken. In the given circumstances, price paid before the Sub-Registrar is a price actually fixed and paid. When it is proved on the file that the price shown in sale-deed was actually fixed and paid, there was no necessity of determining market value of the land any more. In this behalf a reference can be made to the case of Lal Channa Shah v. Dharam Chand Channa Shah and another AIR 1941 Pesh.

52. All the above, shows that there was no necessity of remanding the case for determination of Issue No,4. Law does not favour unnecessary remand throwing, without any just cause, the parties to protracted litigation.

9. Petitioners in their plaint had pleaded that price of Rs,1,50,000 was fixed by the respondents fictitiously, in order to save the same from the process of pre-emption, to their detriment. They wanted to have reduction in the sale price to the extent of Rs,1,00,000 and, under law, they were required to pay court-fee on this amount on their memorandum of appeal before the Appellate Court. Similarly alike court-fee was payable on the memorandum of revision before this Court. An appeal or revision filed without requisite court-fee cannot be regarded as valid presentation, whereover no determination can be made. Judgment in the case of Ally Brothers & Co. Lahore v.

Secretary, Government of Pakistan, Ministry of Commerce, Islamabad PLD 1979 Lah. 857 is directly applicable to the case in hand by which it was held that presentation of memorandum of revision, without payable court-fee, is not legal.

10. There is divergent evidence on the file produced by the parties stating different prices at different times of the land, without mentioning nature and location of the land. There is absolutely no evidence regarding return of any part of price paid by the vendees, in presence of the Sub- Registrar, thus, I have no doubt in my mind that trial Court had rightly decided Issue No,4 requiring the petitioners to deposit an amount of Rs,1,65,000 including incidental charges Rs,15,000 because right of pre-emption is a right of substitution and the expenses incurred by the vendee had to be disbursed by the pre-emptor.

11. Petitioners filed instant revision petition on 21-6-1997 and it came up for hearing before this Court on 1-7-1997, on which date status quo was required to be maintained on C.M.1/C of 1997. Prayer in this petition was that operation of the impugned judgment and decrees may be suspended, pending main petition. It shows that judgments and decrees, under which the decretal amount was to be deposited remained suspended by order of this Court. Since I intend to dismiss this revision petition, the petitioners are directed to deposit decretal amount in terms of decree, dated 11-1-1997 within period of two months i.e, till 16-4-2004, failing which their suit shall be deemed to have been dismissed.

12. For what has been discussed above, I am of the considered view that no case for interference by this Court, is made out by the petitioners due to non-payment of court-fee, as well as, on merits of the case. This revision petition, has no merit in it, and is accordingly dismissed with costs throughout.