ITBAR GUL Versus SHER HAIDER

Sale of land detained in the plaint vide mutation No.950 attested on 28‑9‑1981 by Taj Mohammad Khan in favour of defendants/ vendees was pre‑empted by Sher Haider in the present suit instituted in the Court of Senior Civil Judge, Kohat. It was alleged in the plaint that the suit land has been sold to the defendants/ vendees (petitioners herein) for the sum of Rs. 24,000 at the rate of Rs.2,000 per Jarib but in order to ward of the plaintiff's pre‑emptive suit, an excess amount of Rs. 1, 50, 000 was entered in the sale mutation as sale consideration. It was further alleged that the plaintiff being co‑sharer, participator in immunities and appendges and owner of contiguous land has got superior right of pre‑emotion against the defendants/ vendees.

2. In the written statement filed by the defendants/ vendees several legal objections were raised to the maintainability of the plaintiff's suit for pre‑emotion. On factual side, it was stated that the suit land was purchased for the sum of Rs.1,50,000 which was fixed in good faith and paid to the vendor and denied the plaintiffs superior right of pre‑emotion as against the defendants/ vendees. It was further stated that the suit land was purchased some four years before the attestation of mutation where after the defendants/vendees have constructed a residential house in it at a cost of Rs.30,000 and are residing in the said house. The learned trial Judge in the light of the pleadings of the parties framed as many as nine issues of which the following are material for the decision of this revision petition:‑

(3) Whether the suit is partial and liable to be dismissed?

(4) Whether defendants are entitled to improvement in the alternative?

(6) Whether the sum of Rs.1,50,000 was actually paid as sale consideration or fixed in good faith? OPD.

(7) Whether plaintiff has got a superior right of pre‑emotion?

(8) What is the market value of the suit land?

3. In support of their pleas, plaintiff examined Faqir Mohammad, Patwari Halqa, as PW.1 and made his own statement while on behalf of the defendants Itbar Gul one of the defendants appeared as DW‑1 and produced Gulbat Khan as their witness. The learned trial Judge decided issues No.3 and 5 in favour of the plaintiff and against the defendants for lack of evidence. It was held under issue No.6 that plaintiff failed to prove payment of Rs.1,50,000 as sale consideration. Issue No.7 pertaining to plaintiff's superior right of pre‑emotion was decided in his favour. The sum of Rs.97,846.90 was determined as market value of the suit land based on five years average. Accordingly the learned trial Judge decreed the plaintiff's suit against the defendants/ vendees on payment of Rs.97,846.90 vide his judgment and order dated 26‑4‑1984.

4. Aggrieved by the judgment and decree the defendants/ vendees went in appeal in the Court of District Judge, Kohat. The learned District Judge deemed it necessary to appoint a Local Commissioner to inspect the spot and conduct local investigation whether any construction is raised in the suit land, if so whether it was after the impugned mutation or it was made before the sale mutation. He was also to work out the estimate of costs of such improvement. Syed Liaqat Banori was appointed as Commissioner on 4‑5‑1985 who visited the spot in the presence of the parties and submitted his report on 2‑6‑1985. The appellants did not object to the report while the respondents objected to it on the ground given in their objection petition. After recording the statement of the Commissioner in support of his report and hearing the learned counsel for the parties on the report of the Commissioner as well as on merits of the case, the learned District Judge dismissed the appeal vide his impugned judgment and order dated 4‑11‑1985.

5. The learned counsel for the petitioner challenged the finding of the learned Courts below given on the pleas of partial pre‑emotion, limitation, improvement and market value of the suit land. It was contended that both the Courts below have misread the evidence resulting in arriving at wrong conclusions.

6. Regarding the plea of partial pre‑emotion the learned counsel referred to mutation No.950 whereby, according to him, the vendees purchased the entire share of Taj Mohammad Khan and Nazir Khan for a sum of Rs.3,00,000 but the plaintiff has pre‑emoted the sale of the share of Taj Mohammad Khan vendor alone. It was further contended that actually the sale mutation was entered on the basis of an oral agreement arrived at between the vendors and the vendees four years before the attestation of mutation and possession was delivered there-under. Hence the plaintiff's suit filed within a year of the attestation of mutation was hopelessly barred by time. It was also contended that the determination of market value of the suit land on the basis of five‑yearly average in these days of fluctuating prices, was inequitable hence unsustainable. It was lastly contended that there was sufficient evidence on the file in proof of the fact that the defendants/ vendees raised construction over a portion of the land sold before the institution of the suit but the Courts below did not allow the compensation on wrong premises.

7. The learned counsel appearing for the respondents argued that the contentions raised pertain to questions of fact determined by the Courts below on appreciation of evidence produced by both the parties. In the absence of any illegality material irregularity, misreading and non‑reading of evidence such findings are immune from interference in exercise of revisional jurisdiction. It was further argued that even otherwise on merits too the petitioners have got no case and the findings of the Courts below are based on sound reasoning.

8. After hearing the learned counsel for the parties and perusal of the record I find no force in the contentions raised by the learned counsel for the petitioners as for as it relates to pertial pre‑emotion, limitation and determination of the market value of the suit land. Though the plea of partial pre‑emotion was raised but it was not specified in the written statement what particular land, the subject matter of the sale, was omitted from pre‑emotion. It was incumbent on the defendants while raising the plea of partial pre‑emotion to have specifically mentioned and described that part of the land which was so omitted as required by the principal governing the pleadings. On perusal of mutation No.950, of which certified copy has been placed on file, initially Taj Mohammad Khan and Nazir Khan both owners of 1/2 share in Khata No.442/1000 and some fractional share in Khata No.442/1000‑1057 are shown to have agreed to sell their share to the vendees for the sum of Rs.3,00,000 but at the time of, attestation Taj Mohammad Khan alone appeared before the Revenue Officer and admitted the sale to the extent of his share for proportionate sale consideration. The mutation was accordingly attested to the extent of his share for a sum of Rs.1,50,000 on 28‑9‑1981. Another mutation No.1030 was attested on the same day through which

Nazir Khan sold his share in favour of Itbar Gul vendee alone out of Khata No. 442/1000‑1057 for a sum of Rs.40,000. The contention of the learned counsel that Taj Mohammad Khan and Nazir Khan both had transferred their shares in the suit land for a sum of Rs.3,00,000 is baseless, for the reasons firstly that the earlier mutation was attested in favour of Itbar Gul and his five brothers while the subsequent mutation was attested in favour of Itbar Gul alone; secondly, the land sold on the basis of mutation No, 950 comprised of several khasra numbers while mutation No.1030 is inspect of only one khasra number which is Khasra No.2251. It is further evidence from the written statements filed by the defendants that it was never alleged therein to at the vendees purchased the entire share of Taj Mohammad Khan and Nazir Khan for a sum of Rs.3,00,000 rather it was stated that‑1‑he suit land was purchased for the sum of Rs.1,50,000.

9. As for as the determination of market value of the suit land is concerned the defendants/vendees failed to prove through reliable evidence the payment of Rs.1,50,000 to the vendor as sale consideration for the suit land. In the absence of such evidence and any other evidence the Courts below were justified in basing reliance on the five years average of sale mutation while determining the market value of the suit land. The learned counsel for the petitioners failed to point out any other evidence on which reliance can be placed for determining the market value of the suit land.

10. Both the Courts below have held that the sale in suit took place on the basis of mutation No.950 which was attested on 28‑9‑1981 and the suit for pre‑emption having been instituted within one year of the attestation is well within time. There is no evidence on the record that there was any oral agreement of sale and that it was complete in all respect and thereafter possession was delivered to them on the spot under the sale. Hence in the absence of proof of these requirements for a completed sale the Court below rightly held that the suit of plaintiff was within time in answering the issue of limitation.

11. The contention regarding improvement made by the defendants-vendees in the suit land by raising construction over a portion of it, however, requires serious consideration. The defendants in their written statement had raised a plea that after the purchase of the land they constructed two houses over a portion of it which cost them Rs.30,000 and that they are residing in the said house. This plea was inducted in issue No.5 and evidence was led on it. The learned trial Judge decided issue No.5 against the defendants on two‑fold ground, i.e. that the learned counsel for the parties failed to press it and that no evidence was led on it. When grievance was raised before the learned District Judge in appeal and he was persuaded that the issue required re-determination he passed the following order on 4‑5‑1985:‑

A number of legal and factual pleas were raised. It included the plea that defendants had taken over the possession of the suit land about four years back. They have constructed house over the suit land. They spent about Rs.30,000 on the same construction. They are, therefore, entitled to the compensation of improvement. The learned trial Judge had not framed any issue in light of the above allegation of the defendants. He had altogether failed to notice the above allegation. Evidence in this respect, was also produced. This allegation has two important aspects. First the claim of the vendee/ defendant that had objected the possession of the suit land under the sale alone before the attestation of the impugned mutation and for that matter the suit was time‑barred"). (He further observed that I, therefore, order for the local commission. I appoint Mr. Liaqat Ali Advocate, as a local commissioner. He would visit the suit land. He would conduct local investigation as to whether some construction has been raised on the suit land after the impugned mutation or before the mutation provided possession was taken over under the sale pre‑empted in this case. In the event of construction, he would estimate its costs after recording evidence of both the parties).

It was reported by the Commissioner that there existed two houses in the suit land one old and the other a newly‑constructed one. In the old one father of Itbar Gul was residing while the second one was in possession of the defendants at the time when he visited the premises. He also worked out compensation of the improvement in respect of the newly‑constructed house to be Rs.33/34,000. It was further reported that the defendants were in possession of the suit land as tenants since long. It may, however, be pointed out that the defendants did not claim that they were tenanting the suit land before the sale made in their favour in their written statement. The report of the Commissioner was accepted by the learned District Judge yet cost of improvment was refused to the defendants vendees on the ground that there was no evidence that this construction was raised subsequent to the attestation of the sale mutation. It can be gathered there-from that the learned District Judge was of the view that the costs of superstructures formed part of the sale consideration entered in the mutation. However, while determining the market value of the suit land reliance was placed on the five‑yearly average of sale consideration pertaining to land only. The learned District Judge, therefore, has committed an error in arriving at a contradictory finding. The market value determined on the basis of five‑yearly average pertains to the market value of the land only and in case the learned District Judge was of the view that superstructure was already in existence over the land when the sale was made, the value of such construct must have been accounted for in the market value while decreeing the plaintiff's suit. It appears that the Courts below have also ignored some material evidence available on the file. Regarding this plea the defendants had in their written statement stated that after the purchase they constructed a house and are residing in the same and substantiated the same in their evidence by producing one other witness in support thereof. It, further, gets support from the report of the Commissioner that one house was newly‑constructed and some portion of it was still incomplete. Against this evidence the plaintiff did not utter a single word. In this view of the matter when the learned District Judge formed the view that the defendants failed to prove that the new construction was made by the defendants/ vendees he was legally bound to have assessed the market value of the suit property by working out the market value of the land on the basis of five‑yearly average plus the market value of the superstructure which existed in the suit land valuingll Rs.23,000. Consequently while upholding the finding of the two Courts below on rest of the issues I set aside the finding given on issue No.5 and accept the revision petition, set aside the judgment and decree of both the Courts below and decree the plaintiff‑respondent's suit against the defendants/ vendees on payment of Rs.1,21,846,90. The parties shall bear their own costs. The plaintiff decree‑holder is directed to deposit the excess amount decreed by this Court within a period of two months failing which his suit shall stand dismissed.

M.Y.H./554/P Suit decreed.