ALLAH BAKHSH vs UMAR And Another

ABDUL QADEER CHAUDHRY, J: --These appeals by the leave of the Court are directed against the judgment of the High Court dated 12-6-1988.

2. The facts in brief, are that the appellant purchased land measuring 97 Kanals 7 Marlas vide Mutation No.273 attested on 17-9-1979. Two pre-emption suits were filed, one by Allah Diwaya (Suit No.90/1) for an area of 15 Kanals 8 Marlas bearing Khasra No.817 and the other by Umar (Suit No.195/1) regarding 80 Kanals 19 Marlas bearing Khasra Nos. 915, 961, 962 and 817. According to the appellant, he had purchased the suit land for Rs.1,15,620. The respondents contested the claim of the appellant about the sale price. These suits were consolidated and 10 issues were framed by the trial Court. The trial Court decreed both the suits vide judgment dated 10-4-1984 (Suit No.90/1 for Rs.5531 and Suit No.195/1 for Rs.29,077 i.e. Total Rs.34,608). The two appeals were filed before the District Judge by the appellant who remanded the case for assessing the market value of the disputed land as `Nal Chahi' type of land. After the remand, the Court examined Abdul Hanan, Patwari. After taking into consideration the evidence of the Patwari, the trial Court on 9-3-1985 held that the Patwari could not produce five years or one year's average. The request of the appellant for appointment of a local commissioner was rejected as that was not allowed by the District Judge. The Civil Judge maintained his previous decision with regard to the price of the suit land.

The appellant filed two appeals before the District Judge who rejected the same on 9-3-1985. The appellant's Revision Petitions were also dismissed by the High Court.

3. In the leave granting order, it has been noted that the Patwari having failed to produce the correct five years or one year's average of the suit property the Courts below were bound to appoint a commissioner to assess the market value of the suit property.

4. The District Judge has referred to the application of the appellant through which he requested the Court for the appointment of a local commissioner on the ground that he had purchased the property in the hope that it would be irrigated through the canal water so he paid the higher price.

This fact would show that the land was unirrigated at the time of the transaction. The Court did not consider it proper to appoint a local commissioner in view of the evidence on record. The statement of the Patwara was also taken into consideration who stated that the suit property was not irrigated through the canal water. It was not included in the Chak-bandi Warabandi. The other reason which prevailed with the District Judge was that the suit property is Banjar Qadeem. The evidence of the appellant about the payment of sale consideration was contradictory and unreliable. Only two mutations of Nal Chahi type were sanctioned but these were after about 3 and 4 years of the suit mutation and in one of them, the defendant-appellant is the vendee. The prayer of the appellant for appointment of a local Commissioner was rejected by the District Judge in the light of the above finding. The Civil Judge has referred to the statement of Patwari, R.W-1 who stated that impugned mutation was attested on 17-9-1979. The two mutations Ex. R.W.1/1 and EX.R.W.1/2 were attested on 4-1-1982 and 15-9-1983 respectively. As such, five years or one year's average could not be prepared. As earlier stated, the request of the appellant for appointment of a Local Commissioner was rejected as the same was refused by the District Judge while remanding the case in the first round of litigation.

5. Learned counsel for the appellant has referred to the statement of Abdul Hanan, Patwari, who was examined by the trial Court on 30-7-1985 i.e. After the remand of the case by the District Judge who stated that there was no Nal Chahi land in the Mauza. The mutation register showed only two mutations regarding Nal Chahi land attested on 31-5-1982 and the other attested on 15-9-1983 on the payment of Rs.1,65,200 for land measuring 102 kanals. In view of the above facts, the Patwari was not in a position to prepare five years' and one year's average. The learned counsel has referred to the cross-examination of the witness wherein he stated that the suit land is entered in Jamabandi for the year 1979-80 as `Nehri'. He further stated that at the time of the sale transaction land measuring 4 Kanals 4 Marlas was Chahi type. The lands surrounding the suit land used to be irrigated by means of Chah and afterwards when the canal water was given to the surrounding lands these lands became Nehri Chahi. The learned counsel submitted that at least 4 Kanals 4 Marlas of Chahi land was available but the land was considered for the purposes of market value as Banjar Qadeem. The learned counsel was given sufficient time to ascertain the actual market value of the Chahi land of 4 Kanals 4 Marlas but he failed to provide any data. However, he contended that the finding of the Courts below that the subsequent transaction could not be taken into consideration is not supported by any law. He has referred to Bahil v. Mutalli (1988 CLC 1337).

He also submitted that the provisions of sections 25 and 27 of the N.-W.F.P. Pre-emption Act were not taken into consideration in determining the actual value of the suit land. According to section 25, if in the case of a sale, the parties are not agreed as to the price at which the pre-emptor shall exercise his right of pre-emption, the Court shall determine whether the price at which the sale purports to have taken place has been fixed in good faith or paid. According to section 27, for the purpose of determining the market value, the Court may consider the value of the similar land or property in the neighbourhood or value of the land or property as shown by previous sales or mortgages.

6. As the evidence has come on record that at the time of sale transaction the land measuring 4 kanals 4 marlas was Chahi type, the surrounding lands were also used to be irrigated by Chah and subsequently the land became Nehri Chahi but the land was treated as Banjar Qadeem. This fact was not noted by the Courts below. We do not consider it proper to remand the case back for determination of this fact. However, there is no formula before us to determine the average price of the land as the parties counsel have failed to provide any data in spite of sufficient time granted to them. The appellant has averred that he had purchased the suit land for Rs.1,15,620. Rs.63,685 have been awarded to the appellant as compensation. In the circumstances of the case, we allow Rs.30,000 more to the appellant as price of the disputed land in addition to the amount already awarded to the appellant by the trial Court.

7. The appeals are partly allowed in the above terms with no order as to costs. The respondents would deposit the balance amount on or before 28-6-1991.