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Petitioner: SHAH GHULAM HUSSAIN VS Respondent: MST. ZEENAT BIBI
P L D 1969 Peshawar 107
P L D 1969 Peshawar 107
Before Shakirullah Jan, J
Shah GHULAM HUSSAIN Petitioner
Versus
Mst. ZEENAT BIBI AND ANOTHER‑Respondents
Civil Revision No. 45 of 1966, decided on 10th December 1968.
Pre‑emption‑Two pre‑emptors‑ Valuation of property for purpose of court‑fee‑Admission by one pre‑emptor as to valua tion‑Not binding upon other pre‑emptor claiming separately in his own right.
Sale of a house was pre‑empted separately in their own rights by A and B. Both had alleged that the sale price was fictitiously entered in the sale deed. Suits of both of them were consolidated. The counsel for A admitted that the house had been reconstructed by the vendee at a cost of Rs. 50,000. The trial Judge, without examining B came to the conclusion that since one of the parties had valued the improvement at Rs. 50,000 and the price of the house at Rs. 5,000, the price of the house was Rs. 55,000. The trial Judge therefore directed payment of court‑fee on Rs. 55,000. The order of trial Judge was challenged by B urging that apart from the statement of counsel for A there was no material on record to show that dee vendee had spent Rs. 50,000 on the re‑construction
Held, the admission by the counsel for the rival pre‑emptor, admitting the valuation of the house at Rs. 50,000 is obviously not binding on the petitioner, who was not represented by him and who has an independent right of his own. It is clear that the finding of the trial Judge proceeds upon pure conjectures, has no basis and cannot be accepted as final with respect to the valuation of the improvement.
S. Usman Ali Shah for Petitioner.
Respondents : Ex pane.
Date of hearing : 10th December 1968.
JUDGMENT
Briefly, the facts giving rise to this Civil Revision are that Pahlwan Shah, a resident of village Ortak Pur Kamra, sold a house containing three rooms as specified in the heading of the plaint, situate in the abadi of the same village to Manzur Hussain Shah on the basis of a sale deed, registered on 24‑2‑1964 for the ostensible sum of Rs. 5,000. Mst. Zeenant Bibi, a daughter of the vendor brought a suit for possession by pre‑emption of the above‑mentioned house, alleging that it was sold for Rs. 50 and the inflated sum of Rs. 5,000 was fictitiously entered in the sale deed. She claimed superior right of pre‑emption on the ground that she was daughter of the vendor and the vendee was a stranger. This suit was registered at No. 127 of 1965 in the
Court of the Senior Civil Judge, Campbellpur on 22‑2‑1965. Shah Ghulam Hussain, the present petitioner also brought a suit for possession by pre‑emption of the above‑mentioned house, saying that it was sold for Rs. 200 and the sum of Rs. 5,000 was entered in the sale deed with a view to swell up the market value. He claimed superior right of pre‑emption on the ground that he was collateral of the vendor. This suit was registered at No. 148 of 1965 in the Court of the Senior Civil Judge, Campbellpur on 24‑2‑1965. The two suits were consolidated.
2. The defendant‑vendee while denying the superior right of pre‑emption of Mst. Zeenat Bibi and Ghulam Hussain urged that he had purchased the suit house for Rs. 5,000 which sum was fixed and paid in good faith. He averred that after purchasing the suit house, he demolished it and constructed a new house at the cost of Rs. 50,000‑60,000 and he was thus entitled to the recovery of the above‑mentioned amount. He lastly urged that the suit was barred by time. The two rival pre‑emptors also denied each others right of pre‑emption.
3. The following issues were framed :‑
(1) Whether the pre‑emptors have superior right of pre emption to that of the vendee‑defendant?
(2) Which of the pre‑emptors has superior right of pre emption inter se?
(3) Whether the sale price of the suit property at Rs. 5,000 was fixed in good faith or actually paid, if not, what is the market price of the suit property?
(4) Whether the defendant has effected any construction on the suit property? If so to what extent and to what effect?
(5) Whether the suits of the pre‑emptors are time‑barred?
(6) Whether the pre‑emptors are estopped by bringing their suits by their word and conduct?
(7) Whether the suit of Mst. Zeenat Bibi is for partial pre‑emption?
(8) Whether the suit of Zeenat is for the interest of the vendee and what is its effect?
Mst. Zeenat Bibi examined Pahlawan Shah vendor as a witness in support of her claim on 12‑6‑1966.
4. On the 14th of July 1966, Sheikh Karim Bakhsh learned counsel for Mst. Zeenat Bibi admitted that the house was re constructed by the vendee at the cost of Rs. 50,000. The trial Judge relying upon the above‑mentioned statement and without examining Shah Ghulam Hussain petitioner regarding the valuation of the house by his order, dated 14‑7‑66, came to the conclusion that since one of the parties had valued the improve ment at Rs. 50,000 and the price of the house at Rs. 5,000 in these circumstances, the price of the house in the opinion of the learned trial Judge came to Rs. 55,000 and he directed the parties to pay court‑fee on Rs. 55,000 on or before the 29th of July 1966.
5. S. Usman Ali Shah, learned counsel for the petitioner while attacking the order of the Court below, urged that apart from the statement of Sheikh Karim Bakhsh, counsel for Mst. Zeenat Bibi rival pre‑emptor, there is no material on the record to show that the vendee had spent Rs. 50,000 on the con struction of the house. There is some force in the contention raised by the learned counsel for the petitioner, because the learned trial Judge did not bother to record the statement of the petitioner, regarding the valuation of the improvement, and nor any evidence was examined by him. The admission by Sheikh Karim Bakhsh, counsel for the rival pre‑emptor, admitting the valuation of the house at Rs. 50,000 is obviously not binding on the petitioner, who was not represented by him and who has an independent right of his own. It is clear that the finding of the learned trial Judge proceeds upon pure conjectures, has no basis and cannot be accepted as final with respect to the valuation of the improvement. In these circumstances, I accept this revision petition, set aside the order of the trial Judge and remand the case to him to proceed with it in accordance with law. Cost to follow the event.
A. B./K. B. A. Petition accepted.