ALLAH BAKHSH Versus WILAYAT KHATOON

MUHAMMAD ASADULLAH, J.‑ ‑The land in dispute was sold by Mst. Aisha etc. in favour of the appellants through !Mutation No.247 sanctioned on 13‑1‑1981. The respondent filed a suit for possession of the suit land through pre‑emption on the ground that she was an heir of the vendors and her right of pre‑emption was, therefore, superior. She alleged that the land in dispute was sold for a sum of Rs.l lac but the price was fictitiously mentioned as Rs.4,54,500 in the said mutation. On the pleadings of the parties the following issues were framed:‑

(1) Whether the plaintiff deliberately assessed an incorrect amount of court‑fee? O.P.D.

(2) Whether, if issue*No.l is proved, the plaintiff contumaciously defaulted to make up the deficiency in court‑fee within time? O.P.D.

(3) Whether, in case the suit succeeds, the defendants are entitled to a sum of rupees twenty thousand on account of expenditure of improvements upon the suit land? O.P.D.

(4) Whether a sum of rupees four lac fifty‑four thousand five hundred had been fixed in good faith or actually paid as price of the suit land? O.P.D.

(5) What, in case issue No.l is not proved, was market value of the suit land at the time of relevant sale? O.P.Parties.

(6) Whether the plaintiff has got a superior right of pre‑emption against the vendee s‑defendants? O.P.P.

(7) Relief.

The issues were decided in favour of the respondent and the suit was decreed on payment of Rs.2,27,250. The appellants have filed this appeal to challenge the said judgment and decree. Twenty‑three of the appellants mentioned in C . M. No. 1427‑C‑1988 have withdrawn from the appeal through the said Civil Miscellaneous Petition and they are allowed to do so. The appeal is contested by the remaining appellants. Record has been perused and arguments have been heard.

2. The learned counsel for the appellants has mainly argued the case in regard to the payment of price (i.e. issue No.4). Muhammad Ramzan D.W..1 and Khuda Bakhsh D.W..2 have stated that the bargain of sale was struck in their presence for a sum of Rs.4,54,500 but a sum of Rs.10,000 only was paid as earnest money in their presence. Allah Wasaya one of the appellants appeared as D.W.3. D.Ws 1 and 2 have not stated that the remaining amount of Rs.4,44,500 was paid in their presence or that the mutation in dispute was sanctioned in their presence. Similarly no evidence oral or documentary, except for the interested statement of D.W.3, has been produced to prove any payment. It is difficult to rely on the statements of D.Ws.l and 2 on this point because if the price was so heavily fixed there was no bar in executing an agreement therefore. At least a receipt for the amount of Rs..4,44,500 would have been executed and witnessed by some independent persons. It will be useful to point out that Allah Wasaya, D.W. 3 did not say that D.Ws.l and 2 were present when the bargain of sale was struck. Therefore, in fact, their presence has been exdluded. Accordingly the appellants failed' to prove issue No.4 and the finding of the learned trial Court, therefore, is confirmed.

3. There then remains the question of determination of market value of the land in dispute. The appellants produced only one mutation Exh. D.1 through which 60 kanals of land was sold for Rs.42,000 on 15‑1‑1981. This will yield a price of Rs.700 per kanal. On the other hand, the appellants have tendered in evidence mutations etc. from Exh. P.2 to Exh. P.11. The said mutations and mutation Exh. D.1 taken together yield an average price of about Rs.247 per kanal. Obviously no reliance can be placed on only one mutation i.e. Exh. D.1 and it is just and proper to take into account all these mutations and then arrive at an average price. It may be mentioned that no B quinquennial average was got prepared or filed by the appellants. The average price, therefore, has to be worked out on the basis of all the said transactions of sale. The learned trial Court has allowed the price of the land at Rs.250 per kanal which is quite correct according to the said average price and the evidence on record. Therefore, the finding of the learned trial Court on issue No.5 is also affirmed.

4. There is no cogent evidence, even worth mentioning, in regard to the issue relating to the expenses on improvements and the decision of the learned trial Court thereon is well founded.

5. Although the decision on issue No.6 relating to the right of pre‑emption is not seriously disputed yet it may be added that it is proved from the pedigree table Exh. P.1 read with the evidence of Muhammad Akbar Khan, P . W.1 that the respondent is a collateral all the vendors. It may be pointed out that there is no rebuttal of C this documentary‑cum‑oral evidence. P.W.1 has clearly stated that Mst. Aisha one of the vendors is a daughter of Khan Gul Khan and that Mst. Samee another vendor is the cousin of Fateh Khan being a daughter of his sister. As such the respondent is the heir of the said two ladies, the vendors, as a distant kindred. Accordingly the findings on issue No.6 are confirmed.

6. It may be mentioned that Criminal Original No.41‑C of 1985 was filed by the appellants alleging that the respondent had violated the status quo order issued by this Court on 9‑10‑1984 in this R . F. A. In para 4 of this petition itself it has been mentioned that the proceedings of execution of the warrant of possession in execution of . the decree of the learned trial Court were completed on 27‑9‑1984. It is wrong to say that the warrant of possession was executed fakely or after the issuance of the status quo order. Therefore, there is no violation of the status quo order issued on 9‑10‑1984 and, in fact, it had been obtained by the appellants by concealment of the fact of the execution of the decree. Therefore, the said Criminal Original is dismissed.

7. In view of our above discussion, the appeal is dismissed with costs:

A . A . / A‑326/ L Appeal dismissed.