IRSHAD-UL-HAQ Versus MUHAMMAD SALEEM

MUHAMMAD ASADULLAH, J.‑ ‑The land in suit measuring 188 Kanals and 19 Marlas situated in Mauza Qilla Sora Singh, Tehsil Dipalpur, District Sahiwal (now District Okara) was purchased by the appellant through registered sale‑deed, dated 11‑2‑1980 for a consideration of Rs.3,07,000. The respondent filed a suit for possession of the suit land through pre‑emption on payment of Rs.2,00,000 alleging that the remaining price was fictitious. He claimed that his right of pre‑emption was superior as he was a collateral of the vendor and a co‑sharer in the Khata in which the land in dispute was situated. The suit was contested by the appellant and he claimed the full price of Rs.3,07,000 apart from expenses of registration etc. The learned Civil Judge 1st Class, Dipalpur decreed the suit of the respondent on payment of Rs.2,36,188.50 vide judgment, dated 10‑11‑1984. The appellant has challenged the said judgment and decree through this R.F.A. We have perused the record and have heard the arguments.

2. The learned counsel for the appellant has argued the appeal only on two points, relating the price of the suit land and the, expenses incurred on registration etc. Findings on other issues are not challenged before us. So far as the question relating to the expenses of registration etc. is concerned the learned counsel for the appellant has agreed that as there was no mention in the sale‑deed Exh.D.l that the expenses of registration will be borne by the vendee the same cannot be allowed to the appellant in addition to the sale price. Whole of the sale price amounting to Rs.3,07,000 was paid before the Sub‑Registrar at the time of registration of the sale‑deed Exh. D.l. A presumption of truth is attached to such payments. Therefore, it was for the respondent to prove that out of the said price some amount was refunded by the vendor to the vendee. There is no such evidence on record. The learned trial Court has misread the evidence of Hap Muhammad Tufail D.W. 1 and Ilyas D.W.2. D.W:1 is also a Lambardar and it was he who identified the parties before the sub‑Registrar. He has clearly stated that whole of the sale price was paid by the vendee to the vendor in his presence. He has only stated that the same was not counted in his presence. This does not mean, as has been interpreted by the learned trial Court, that the amount was not paid in full in the presence of D.W.l. His evidence read with the endorsement of the sub‑Registrar on Exh.D.l. suffices to prove, apart from the said presumption, that whole of the sale price was actually paid at the time of the registration. Similar is the case with the evidence of Ilyas D.W.2. Accordingly, it is proved beyond doubt that a sum of Rs.3,07,000 was actually paid as the price of the suit land. The finding of the learned trial Court on issue No.2 relating to the payment of price, is, therefore, reversed and the issue is decided in favour of the appellant. The decision on issue No.3 relating to the market value is not, therefore, required.

3. As a result of the above discussion the appeal is partly accepted. The suit of the respondent is decreed against the appellant on payment of Rs.3,07,000 (instead of Rs.2,36,188.50). The respondent shall deposit the remaining pre‑emption money amounting to Rs.70,811.50 with the learned trial Court, on or before 31‑5‑1988 failing which his suit shall stand dismissed.

4. The parties shall bear their own costs throughout.

S.Q./I‑66/L‑ Appeal partly accepted.