AHMAD Versus MUHAMMAD AKRAM.
In this second appeal maintained by vendees, the dispute is confined to money payable under the pre‑emption decree which itself is not under contest.
2. Sale sued out to be pre‑empted by the respondent was effected on 12‑10‑1980 through a registered deed for an ostensible price of Rs.5,00,000 certified by the Sub‑Registrar to have been paid before him but it was alleged by the pre‑emptor that a sum of Rs.2,50,000 was returned by the vendor after the registration. Contest entered by the vendees led to the framing of issues Nos.2 and 3 on the point in the following terms:‑
"(2) Whether the sale consideration amount of Rs.5,00,000 was bona fide fixed and was paid to the vendors by the defendant?
(3) If issue No.2 is not proved, then what was the market value at the time of disputed sale transaction?"
Evidence for and against having been led, trial Court accepted testimony of P.Ws. 2 to 4 to reach the conclusion that sale‑price was fixed in the bargain as Rs.2,50,000 and the excess amount paid before the Sub‑Registrar was returned and even the market value at the time of sale was rather a little less than the amount actually agreed upon. In reaching this conclusion, trial Court observed:‑
"Since the allegation concerning return of money was specifically alleged in the plaint, therefore, the defendants while appearing in the witness‑box were supposed to prove the fact that whole of the amount accepted by the vendor from the vendees before the Sub‑Registrar, was carried away and nothing was returned."
In result, by the judgment dated 7‑5‑1986, trial Court decreed the suit upon payment of Rs.2,82,500 and although the basis for reaching of this figure was not specified in the judgment, yet, it seems to have presumably been worked out on the basis of market value.
3. Appeal there against filed by the vendees came up for hearing before an Additional District Judge who, after reconsidering the matter affirmed the trial Court's finding with regard to the alleged return of half of the ostensible sale‑price by the process of the very same reasoning whereat trial Court had proceeded. He observed:‑
"It was imperative for the appellant to prove beyond reasonable doubt that sale‑price amount of Rs.5,00,000 was fixed in good faith, actually paid to the vendor and no amount was returned to the vendees after the registration of the sale‑deed."
He also took notice of the facts that the P.Ws. who had asserted that half of the sale price had been returned to the vendees had not been cross‑examined on that point and concluded that the defendants had not been able to prove that the sale‑price of Rs.5,00,000 was fixed in good faith and was actually paid. While upholding the conclusion that the actual sale‑price is Rs.2,50,000 he proceeded to enhance the decretal amount to Rs.2,90,400 by awarding Rs.2,900 as the cost of water‑pump and fodder‑cutting machine and another sum of Rs.5,000 towards the registration‑fee. With this modification, the appeal was disposed of by the judgment dated 31‑7‑1988 and, in this way, he even concurred with the trial Court that the sale‑price is Rs.2,82,500
4. Being dissatisfied therewith, vendees have come up in this second appeal. Although prayer made in the appeal is that suit of the pre‑emptor be dismissed upon setting aside the decrees passed below, learned counsel has confined the grievance to the sale‑price. He has argued that Section 25 of the Punjab Pre‑emption Act, 1913 has provided a two‑fold criteria for fixing of price, namely, that whether the price at which the sale purports to have taken place had been fixed in good faith or it was actually paid. Hence, vendees were entitled to succeed in recovering the ostensible sale‑price of Rs.5,00,000 proved through the certificate of the Sub‑Registrar appended on the sale‑deed (Exh.P.7) which evidences the payment of this amount in his presence and the Courts below have misviewed the requirement of law into accepting bald assertion of interested witnesses for concluding return of half of the sale‑price on account of their incorrect approach to the question of burden of proof. Reliance has been placed on Malik Hussain and others v, Lai Ram Chand and others (PL 1970 SC 299) wherein it has been held:‑
"If the court finds that the price mentioned in the deed of sale was, in fact, paid, then, the pre‑emptor, in order to pre‑empt, shall be required to pay that price, and it shall not be necessary for the Court to determine the market‑value of the property and fix the price for the purpose of pre‑emption."
5. There is no doubt that the two Courts below have erred in law in supposedly going by the market‑value of the land, contrary to the dictum reproduced above, and thereupon treating the presumption attaching to the certificate of the Sub‑Registrar to have been rebutted. Since in para. 3 of the plaint there was a specific assertion made with regard to the return of sale price, therefore, it was the duty of the plaintiff to have so proved and not only that there is no satisfactory evidence adduced on this point but also there is not even a reason forthcoming as to why the vendor may have thus returned a substantial amount after it had been passed on to him as the price of his land and had become his absolute property?
Learned counsel for the respondent has endeavoured to defend the impugned judgment on the basis of the index of average prices (Exh.P.l) but it is only inconsequential in the presence of above quoted dictum of their Lordships of the Supreme Court whereunder the sum of Rs.5,00,000 paid before the Sub‑Registrar was entitled to be held to have been so paid in fact and should have formed the basis of decree passed in favour of the respondent.
6. Plaintiff‑respondent has not filed any appeal in respect of money ordered to be paid under the decree passed in his favour and has neither maintained any cross‑objection thereabout nor has his counsel made any submission in respect of inconsistencies in the appellate judgment regarding the sale‑price. Hence, no occasion arises for resolving them.
7. In result of the foregoing, this appeal is allowed and instead of the basic sum of Rs.2,82,500 held below to be the sale price, the sum of Rs.5,00,000 is held to be payable on that account and, in this way, the amount gets increased by Rs.2,17,500 which will be the amount liable to be paid in addition to Rs.2,90,400 worked out in the appeal below as being payable by the pre‑emptor. Total amount payable by the respondent‑plaintiff thus comes to Rs.5,07,900 and, if he has already deposited the amount reckoned by the appellate Court then, the difference amounting to Rs.2,17,500 (two lacs, seventeen thousand and five hundred) only will be deposited by him in the trial Court on or before 7‑7‑1991 or, else, the entire sum of Rs.5,07,900 (five lacs, seven thousand and nine hundred) minus the Zar‑i‑Panjum already deposited, will be so paid by him on or before that date. Failing which, the decrees passed below in his favour will stand vacated automatically and his suit will be regarded to have been dismissed. In either event, costs hereof are left to be borne by the parties.
AA./A‑1376/L Appeal accepted.