HAYA KHAN AND ANOTHER vs Haji SAID KHAN

ORDER

1. DORAH PATEL, J. The dispute in this petition relates to land in Now' shera, District Peshawar, and was sold to the respondent by a mutation dated 7th September, 1972, for a sum of Rs. 45,000. The petitioners filed a suit for pre-emption and for the purpose of this petition it is sufficient to state that their plea was that the property had really been sold for Rs. 10,000. The question of the valuation of the property was contested by the parties, and presumably at their request reports of two Commis--sioners were obtained. The respondent also produced evidence in support of the plea that the sale consideration was genuine. The learned Senior Civil Judge, Peshawar, before whom this evidence was recorded, held, after examining it, that the property in dispute had been sold for Rs. ^..5000. As he decreed the suit, he directed the petitioners to pay the balance of of Rs.

2. 35,000, as they had already deposited Rs. 10,000.

3. As we are not concerned in this petition with the claim of the petitioners that they had a right to pre-empt the sale, it is sufficient to observe here that they challenged the valuation thus put on the property by the trial Court, in an appeal in the Peshawar High Court, The learned Chief Justice examined the evidence produced by the parties and pointed out that Commissioners had been appointed twice to submit reports on the valuation of the property. He then observed that the Extra Assistant Commissioner, Nowshera, who had given his report on 18-12-1974, had, after obtaining opinions from various people, stated that the land in the area, where the property in dispute was situated, was worth RS.6,500 per jareeb, and we may point out here that even according to the learned counsel the land in dispute measured about eight jareebs. Then the learned Chief Justice referred to the evidence of the respondent's witnesses, who had also given evidence that the price of the suit land was about Rs. 45,000. He, therefore, rejected the claim of the petitioners that the real value of the land was only about Rs. 27,000. Accordingly, by his judgment dated 6-12-1980, he dismissed their appeal against the valuation of the suit property. Hence this petition for leave.

4. Learned counsel did not dispute the sale consideration, which was Rs. 45,000. His only argument before us was that there was an orchard on the suit property, which had been destroyed by the respondent after the sale therefore, as Rs. 45,000 was not the correct value of the property after the destruction of the orchard the claim of the petitioners that the value of the property was about Rs.

5. 27,000 should have been decreed.

6. In support of this submission, he relied on the statement of the Patwart, who had stated that the average of sale price for five years of the suit land was about Rs. 44,000, on the footing that it had an orchard, but the price of land 'nehri awal' was only Rs. 27,242. In view of the statement of the Patwari and the stand of the petitioners that the orchard had been removed, learned counsel submitted that the learned Chief Justice had misread the evidence.

7. We are unable to accept this submission, because there was no evidence of the condition of the orchard at the time of the sale to the respondent, nor was this a precise plea taken by the petitioners in their plaint.

8. Learned counsel then submitted that the Courts below had erred in relying on the reports of the Commissioners, because the Courthad n power, in view of section 27 of the N: W. F. P. Pre-emption Act, 1950, to refer the question of the market value of the property sought to be pre-empted to Commissioners. We have examined this section and there is nothing in it to support the learned counsel's submission. Additionally, this plea appears to have been raised for the first time in this Court, and o this ground also it cannot be entertained.

9. As the learned Chief Justice has placed great reliance on the report of the Extra Assistant Commissioner, learned counsel stated that his report should not have been relied upon because the E. A. C. Had relied on the opinions of other persons. Although he admitted that the E. A. C. Had been examined in Court, yet his evidence is not available. We can, there--fore only assume that the E. A. C. Was not cross-examined, because the petitioners knew that his valuation was correct.

10. Additionally, the Chief Justice has pointed out that the respondent's claim was supported by the evidence of the witnesses, therefore, in the circumstances discussed, it is clear that there is evidence in support of the concurrent findings of the Courts below that the sale price of Rs. 45,030 in the sale agreement was the genuine price of the property.

11. No case has been made out for the grant of special leave, and the petition is dismissed on this ground.