MUHAMMAD GULZAR Versus HABIB-UR-REHMAN

ABDUR REHMAN KHAN, J.-- -The above two appeals almost arise in similar circumstances as they impugn the legality of a common judgment and involve the determination of market value in two pre-emption suits. They are, therefore, disposed of through this judgment.

2. Appellant/vendee by mutation No.4006 sanctioned on 23-5-1990 purchased an area of 32 kanal for Rs. 6,00,000 and through mutation No.4012 attested on the same date, he also purchased land of an area of 21 kanal and 5 marla for Rs.4,00 000 These sales were pre-empted by the respondent through two separate suits. The learned trial Judge held that the pre-emptor had proved superior right of pre-emption and decreed the suits. As for the market value, it was held that the Court was not always bound to make one year average as basis for fixing market value and the sale price can also be ascertained from other evidence and material on the record and as such the market value was fixed at Rs.6,00,000 in one suit and Rs.4,00,000 in the other which were shown as sale price in the impugned mutations. In appeal, the learned Appellate court was of the view that the learned trial Judge has erred in not relying on one year average as according to it they could form valid basis for determining the price of the land and, accordingly, while relying on one year average it fixed Rs.3,88,339.20 and Rs.2,57,881.50 as the price of the land covered by the two mutations. The High Court in revision agreed with the Appellate Court.

3. We heard the learned counsel for the parties in support of their view point and went through the available record.

4. We agree with the trial Court that it is not an inflexible rule of universal application to fix the sale price in accordance with one year or five years average but for correct assessment of the market value of the property other evidence and material brought on record are to be looked into and considered for allowing compensation. In the present case this is admitted position that this very land was sold by father of the pre-emptor respondent to Fateh Khan D.W.2. This Fateh Khan was examined by the vendee who stated

If this gap of seven years in between the sale of Fateh Khan and the instant sale is considered then, keeping in view the devaluation of the currency and depreciation of its value as against the appreciation of the market value of the land, it would be just and fair in the circumstances of this case to uphold the price fixed by the trial Court.

5. Consequently, we allow these appeals and set aside the impugned judgments and decree of the revisional and the appellate Court to the extent of market value of the suit land and restore that of the trial Court with no order as 8 to costs. The respondent is directed to deposit the balance sale price in the trial Court so as to bring it in conformity with that fixed by the trial Judge within one month from today i.e. 16-10-1998, otherwise his suits will be liable to dismissal.

H.B.T./M-229/5 Appeals allowed.