SULTAN AHMAD Versus RIASAT ALI

ORDER

This Regular Second Appeal impugns a decree dated 14‑1‑1987 passed by the learned District Judge, Toba Tek Singh, whereby the appellants' first appeal in a pre‑emption suit assailing the ostensible payment "of Rs.5,00,000 was dismissed.

2. The same point is agitated in this second appeal. Apparently it is a question of fact and the argument raised against it involves re‑appraisal of evidence. The main contention was that the lower, appellate Court misread the testimony of Akbar Ali, P.W.

5. I have pet<used the same. He was not relied upon. On his own showing he was not present at the time of registration of the sale‑deed although. he was passing nearby. Learned counsel relying upon his examination in‑chief contended that he was for all purposes a witness of the original transaction wherein price of the land in question was settled in his presence at Rs. 1,75,000. He canvassed that his testimony should have been read in the context of taking part in the bargain rather than the registration of the sale‑deed.

3. The lower appellate Court seems to have been influenced by the observation of the witness that his presence at the time of registra tion was rather superficial. Although ostensibly the two events: (i) of the original bargain and (ii) of the registration of the sale‑deed are separable, yet the superficial way of the witness's association at the time of registration of the sale‑deed was a great indicator of an uninhering nature of his testimony. In the examination.‑in‑chief he pointed out that the bargain had been struck only two days before the registration thereof while in the cross‑examination he maintained that the settlement of the bargain lingered on for a long period of two years. Still further he extended his testimony to say that he had heard the bargain to have been settled at Rs.1,75,000. It included an element of hearsay. Above all, he did not show why he was associated at the time of bargain whether it took place two days or two years earlier. Ordinarily he should have shown connection with either party or his own social status calling for his association with the transaction. He did not claim to be a Lambardar nor a person of importance otherwise. If he was actually made to attend the initial transaction, he should not have been left out only to pass by at a later date when it was being formally registered. I do not think the lower appellate Court .vas wrong in its appreciation of the evidentiary value of the witness's oral testimony which did not find support from any document.

4. The registered deed contained an endorsement bearing out the payment of .1s.5,00,000. As rightly noted in the impugned judgment, the same was presumed to be correct unless otherwise shown. Oral testimony of a singular witness namely, P.W. 4 on the point, as already discussed, did not suffice to rebut the presumption attaching to the endorsement of the Registrar.

5. It was claimed that the Aust Panjsala P.6 was wrongly ignored against the dictates of Bahli etc. v. Mutalli (1988 C L C 1337). This contention too calls for reappraisal of the so‑called Aust. It comprised only two sales and that too taking place beyond five years of the impugned sale. One of the grounds to ignore it was that due to inflationary trend taking place over the later period, the two sales were not reflective of the true price index. This reason was equally not perverse and cannot be interfered with in the second appeal.

6. The appellants did not deposit the pre‑emption amount in terms of the decree of the trial Court. Earlier they were refused extension by this Court when the present appeal was filed here. The learned District Judge also did not feel inclined to give them further time as they have been obdurate in the matter. No request was made at the bar for giving them a fresh period for making the deposit, Although they could ask for it, yet failure to deposit the amount in time was at their own risk. When once their prayer was refused in that behalf, they should have become cautious and arranged the deposit without further loss of time. They did not do so and by their contumacy disentitled themselves to any further indulgence. In a way they unnecessarily exposed themselves to the risk‑clause referred to above. They should blame themselves. The R.S.A. is dismissed in limine.

H . B . T . / S‑227/L Appeal dismissed