Arbab HIDAYAT ULLAH KHAN Versus Arbab SAIF ALI KHAN

IKRAMULLAH KHAN, J.--- Through the instant revision petition, the petitioner has challenged the judgment and decree dated 10.11.2010 of learned Additional District Judge-VII, Peshawar whereby the appeal of petitioner against the judgment and decree dated 26.07.2010 of learned Civil Judge XV, Peshawar to the extent of findings of learned Civil Judge on issue No. 6 about determination of market value of the suit property was dismissed.

2. The laconic facts of the case are that petitioner filed a suit for possession of the suit property by exercising his right of pre-emption which was contested by the respondent by filing his written statement raising thereof legal as well as factual objections. From the pleading of the parties, learned trial Court framed as many as 8 issues including relief. In support of his contention petitioner produced and examined Patwari Halqa and also recorded his own statement as PW-1 and PW-2, respectively. An additional statement of Patwari Halqa was recorded as APW-1 and cross-examination was reserved and on 04.01.2009, the right of cross-examination was struck off because the respondent was in Central Jail, Peshawar in some criminal case and on 27.01.2010, the respondent was proceeded ex parte and after hearing ex parte arguments, suit of the petitioner was decreed in his favour. After the release of respondent he filed an application for setting aside the ex parte decree, which application was allowed on the cost of Rs. 1000/- by the learned trial Court on 18.05.2010, and de novo trial was commenced. Petitioner opted to rely on its already recorded evidence; however, defence, the respondent produced and examined Arbab Abdul Hameed Khan as DW-1, Nasrullah as DW-2, as well as recorded his own statement as DW-3, while the statement of Patwari Halqa was also recorded as DW-4. On the conclusion, the learned trial Court decreed the suit of petitioner vide judgment and decree dated 26.07.2010.

3. Feeling aggrieved from the findings recorded by the learned trial Court on issue No. 6 petitioner filed an appeal while the respondent also filed appeal against the judgment and decree of learned trial Court. The learned Appellate Court through consolidated judgment and decree dismissed both the appeals on 10.11.2010, hence the present revision petition.

4. The arguments of both the learned counsel for the parties were duly attended and carefully and scrupulously record was perused.

5. The learned counsel for the petitioner contended, that both the Courts below illegally placed burden of proof on the petitioner of proving the quantum of market price for the preempted land; that mere non raising objection on the exhibition of some selected copies of mutation, on behalf of respondent, could not be made a basis for determination of the market value; that the Court was bound to comply with the procedure enumerated thereunder the provisions of section 28 of the Pre-emption Act 1987, but both Court below concurrently overlooked the mandatory provision of law in this regard and on mere technical ground, has incorrectly illegally determined an exaggerated, excessive market rate/price on the basis of evidence which was inadmissible thereby resulted in gross illegality and irregularity, prayed for setting aside of the finding on issue No. 6 in regard to determination of the market price of the pre-empted land. In this regard relied on the judgment delivered by this Court in case of Kimya Gul v. Khan Muhammad (PLD 2011 Peshawar 108).

6. On the other hand, the learned counsel for the respondent, argued with vehemence, that both the Courts below, had passed a fair and just decision in regard to determination of market value of the pre-empted land as the burden was on the petitioner to substantiate its plea raised in the pleading, as petitioner miserably failed to substantiate his plea raised therein his pleading, then, the price, duly incorporated in the pre-empted sale mutation, which was corroborated by respondent in his witness statement and the three sale mutations placed on record without objection from the petitioner side, which were concurrently accepted by both Courts below and such concurrent finding could not be disturbed in revisional jurisdiction; placed his reliance in regard to burden of proof in this regard on the judgment of Hon'ble Lahore High Court, delivered therein the case of " Ahmad Khan v. Nadir " (PLD 2006 Lahore 200).

7. The sole controversy, raised through the instant revision petition is the market price of the pre-empted land as decree for possession through pre-emption granted to the petitioner, had already attained finality and the possession of the pre-empted land had been delivered to the petitioner. The respondent has not challenged the decree of pre-emption thereafter, on dismissal of its appeal by the learned District Judge, Peshawar and no cross objection being filed herein this revision petition.

8. The contention of the petitioner, was as he alleged in his pleading, that the market price of the land was Rs. 10,00,000/-, while the respondent claimed it to be Rs. 56,00,000/- for the whole of the pre-empted land, which is 7 kanals, 9 sarsai.

9. In the first round of litigation, when, the case was remanded back by this Court to the trial Court an ex parte decree had passed in favour of petitioner in accordance with the prayer asked for therein the suit on payment of Rs. 10,00,000/-.

10. On remand, the respondent produced three kind of mutations, in respect of various sales effected therein Moza Tahkal, which was made basis for determining the market price of the land. The trial Court also examined the Halqa Patwari; who produced and exhibited Yaksala, of the sales effected throughout the preceding year since 2003 to 2004, wherein the copies of mutations produced by the respondents were included too.

11. According to the average rate per the Yaksala, as made out by the DW4 Halqa Patwari, the market rate was Rs. 463895/- per kanal, when all the average of sales within the preceding one year was taken, however, it was Rs. 8,00,000/- per kanal when the three sale mutations were taken alone.

12. The petitioner, in his written statement had reiterated that the market rate was Rs. 10,00,000/- for the whole sold property and this fact was also reiterated by petitioner's witnesses too in their written statements, but these facts were never controverted in cross-examination, deem to be admitted one.

13. Likewise the DW-1 to DW-3 had stated in their cross-examination, that the market price of the land is not below Rs. 30,000/- per Marla.

14. Both the parties failed to prove their assertion, raised therein the pleading in regard to the market value.

15. The provisions of Pre-emption Act, 1987, contained thereunder section 27 has bestowed power upon the trial Court to determine the fact prior to fixing the market price of the property that whether the price at which the sale purports to have taken place has been fixed in good faith or paid. In order to determine, the actual market price section 28 of the Act, provide therein some guideline in this regard as;-

(a) The price of value actually received or to be received by the vender from the vendee.

(b) The estimated amount of the average annual net profit of the property.

(c) The value of similar property in the neighborhood, and,

(d) The value of similar property as shown by previous sales made in the near past.

16. Both the provisions of the Pre-emption Act, 1987, has made it mandatory upon the Court that the price or value actually received or to be received by the vender shall be proved.

17. In case, the vender or the vendee failed to prove, the actual price either received or paid then, the Court has to look into the price of similar land situated in the neighborhood and lastly, the average estimated price of similar land sold in the near past.

18. In the present case, the vendee has brought on record some selected copies of mutations, which was considered too by the trial Court, without adverting to the fact, that whether the land sold through those mutations was similar to the land under consideration.

19. The Revenue Officials had also placed, the estimated one year average price of the lands sold in the preceding year of pre-emption suit, including those who were selected for determination of the price of the pre-empted land, which as determined by the Revenue Officials is lower than the price fixed by the Court.

20. The Pre-emption Act, 1987, is a special law in regard to enforcement of pre-emption rights and the procedure to be adopted thereunder as compared to any other law, particularly the Qanun-e-Shahadat Order, 1984, on point of placing burden of proof in regard to a proof of a particular fact. Likewise, this law has some exceptions too insofar as the provisions of C.P.C., 1908 are concerned.

21. The provisions of section 4 of the Act, give overriding effect of this Act to any other law for the time being in force.

22. As section 4 of the Act, gives superimposing status to the provisions of the Pre emption Act, 1987, then sections 27 and 28 of the act shall be given effect to in its letter and spirit.

23. The procedure provided thereunder section 28 of the Act, as has not been followed by the learned trial Court, in the matter of determination and fixing of the market value, strictly in accordance with the provisions of section 28 of the Act, has exposed its judgment for interference by this Court. As such in view of the reasons given hereinabove, the instant civil revision is allowed, and the finding on issue No. 6, in both the judgments of the lower Courts are set aside and the case is remanded back to the trial Court, to record pro and contra evidence, strictly in purview of section 28 of the Pre-emption Act, 1987, for fixation of fair and just market price of the pre-empted land, however, the rest of the decree shall stand intact.

ZC/551/P Case remanded.