Gul Muhammad etc Vs Muhammad Zahir Shah

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P. No. 421-M/2015.

JUDGMENT

Date of hearing: 24.02.2016

Petitioner (Gul Muhammad & others) by:

Mr. Abdul Halim Khan, Advocate

Respondents:- ( Muhammad Zahir Shah) by: Mian Hussain Ali, Advocate

MUHAMMAD DAUD KHAN, J.- One Zahir Shah

(respondent/plaintiff) has sued Gul Muhammad and others (petitioners/defendants) for possession through exercise of what he alleges to be his superior right of pre-emption over certain land situated in Mohallah Dinabad, Batkhela, District, Malakand. In his plaint, the petitioner has set up a plea that the market value of the suit land is not more than Rupees 4,50,000/-. Keeping in view that plea, the learned trial Court, vide its order passed on 07/05/2011, initially directed the respondent to deposit 1/3rd of the aforementioned sale consideration. In his written statement, the petitioner alleged that the sale consideration is Rs. 22, 00,000/-.

2.As the controversy over the market value of the suit land ensued, the learned trial Court appointed a local commission for determination of the market Nasir

value. In light of the report of the local commission, vide its order dated 16/09/2013, the learned trial Court held that the tentative market value is Rs 18, 00,000/- and directed the respondent to deposit 1/3rd of that amount. The learned District Judge, vide an order 02/07/2015, accepted a revision petition against that order, restoring the earlier order dated 07/05/2011 through which 1/3rd of Rs 4, 50,000/- was ordered to be deposited. The main reasoning of the learned District Judge was that after the expiry of thirty days of the order directing deposition of 1/3rd money, no subsequent order could be passed regarding the same matter. The tentative determination of the price, however, under the law, is subject to final determination in light of the evidence of the parties.

3.The petitioner is aggrieved from the order dated 02/07/2015 of the learned District Judge, Batkhela. He has brought the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

4.We have heard arguments of counsel for the parties and perused the record of the case.

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5.At the outset, let us have a close reading of Section 24 of the Khyber Pakhtunkhwa (KP) Pre- emption Act, 1987 as under:

“24. Plaintiff to deposit sale price of the property. (1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix:

Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court, shall require the deposit of one-third of the probable value of the property.

(2)Where the plaintiff fails to deposit one-third of the same price of the probable value of the property within the period fixed by the Court, his suit shall be dismissed.

(3)Where the plaintiff withdraws the sum deposited under sub-section (1), his suit shall be dismissed.]

(4)Every sum deposited under sub-section (1) shall be available for the discharge of costs.

(5)The probable value fixed under sub-section (1) shall be available for the discharge of costs.” In the context of the present case, two points are worth noting from section 24 the KP pre-emption law.

First, it appears that in its earlier order, the trial Court considered the sale consideration mentioned in the plaint. It is very usual in pre-emption suits that the sale consideration remains a serious bone of contention between the parties. Thus by considering the plaint and the accompanying material, the value of which 1/3 rd is Nasir

ordered to be deposited is purported to be the probable value of the property in dispute. As sub-section 5 of section 24 ibid provides, such probable value is subject to final determination at the trial. In other words, as held in the case of “Haji Bahadar Hilal v/s Muhammad Ayub (2004 CLC 1259 Peshawar):

“Fixation of one-third amount under S. 24 of [KP] Pre-emption Act, 1987, was tentative in nature and the very purpose of section 24 was to keep a check on frivolous suits and the Court would proceed with the case only when a suitable security was furnished by the pre- emptor by the deposit of cash. The actual price of the suit property is yet to be determined by the trial Court after recording of evidence and the same would be payable by the plaintiff/petitioner if he succeeds to establish his superior right of pre-emption before the learned trial Court.”

By taking into consideration the plaint and other accompanying material for the purpose of probable value, the earlier order of the trial Court was thus correct. A similar case was decided by august Supreme Court of Pakistan in 2007—Muhammad Din and other Nasir

vs. Jamal Din and others, 2007 SCMR 1091. The Apex Court has held:

“It is settled proposition of law that the learned Court entertaining the suits under the Punjab Pre-emption Act, 1991, ought to examine the plaint and any material

accompanying it while passing orders for deposit of 1/3rd and the amount payable and direct the parties to deposit the said amount in order to avoid complication later on.”

It may be mentioned here that the law

relating to deposit of 1/3rd of the sale consideration is the same in both the KP and the Punjab.

Second, the earlier order dated 07-05- 2011 for deposit of 1/3rd amount was passed by the learned trial Court (within thirty days) in the following words:

دوعیدروخاتسانبمدماعہیلعاجریوہرکدمیعادنرامہزروسمئشفع ٰ "۔۔۔ونسٹاہےئ "دالخرکے۔ The subsequent order of depositing 1/3rd of sale consideration was passed on 16-9-2013 which was beyond the already provided period of thirty days.

Modifying or reviewing the first order is clearly beyond that thirty days and once the trial Court has passed an order u/s 24 of the Act, for the deposit of 1/3rd sale Nasir

consideration, which was duly complied with, it couldn’t pass any other order after that prescribed period. Moreso, the deposit of the sale consideration under section 24 of the Act is a tentative amount which is subject to final determination of the exact price under section 28 of the Act after recording evidence of both the parties. In other words, it is not final or last word of the Court. Rel: “Haji Fazal Rehman vs Haji Gul Nabi (1992 MLD 2036 Peshawar)” and “Awal Noor vs District Judge Karak (1992 SCMR 746)”.

6.Now let us consider the fact regarding the price the petitioner has alleged in his written statement.

As could be seen in paragraph # 11 of the written statement, the petitioner has alleged that an amount of Rs 18, 00, 000 was paid through bank cheques. But it is further alleged that the actual price is more than Rs.

22,00, 000/. Furthermore, it has also been alleged that the suit property was sold in 2008 vide a sale deed dated 16/08/2008 in which the sale consideration was mentioned as Rs. 800,000/. The petitioner contends that at the time of the impugned sale, the price was much higher. Astonishingly, the petitioner has also alleged that in 2006, the suit property was sold at Rs.

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It follows that the claim of the petitioner is based on an unregistered sale deeds/receipt. Such a claim, it needs no emphasis, could only be determined on the basis of pro and contra evidence of the parties.

7.Regarding the report of the local

commission, suffice it to say that such a report is not legally binding on the court as well as the parties. Rel:

“Mushtaq ur Rehman vs Muhammad Akbar (1981 CLC 364 Lahore”. The relevant part of the judgment reads:

“Report of the local commissioner is not binding on parties nor Court obliged to decide dispute in terms thereof-Parties undertaking to be bound by finding of Local Commissioner and agreeing upon his report being final-Held, position of such Local Commissioner that a referee and his report to be treated as verdict of a referee.”

8.The upshot of our above discussion is that the learned trial Court has wrongly passed its subsequent order dated 16/09/2013, accepting the report of local commissioner regarding the determination of price of the suit property. Legally, the earlier order dated 05/07/2011 shall stand till the final determination of price in light of pro and contra Nasir

evidence of the parties. The learned District Judge has rightly set aside that earlier order of the trial Court.

Thus we find that this writ petition lacks merit.

9.Resultantly, the instant writ petition is dismissed.

10.Before parting with this judgment, it is pertinent to mention here that the trial court shall perform its legal obligation in a proper and fair manner by passing a clear order about the deposit of calculated amount of 1/3rd of the total sale consideration mentioned in the sale deed, mutation etc. To avoid such unnecessary litigation on petty matters, it is directed that in future the trial court shall calculate the sale consideration mentioned in the registered sale deed or mutation or any other document and if these documents are not available then through other reliable source it has to calculate the same and then to direct the preemptor to deposit a specific amount within a stipulated period, however, the period for deposit must be reasonable.

Announced Dated: 24.02.2016

JUDGE

JUDGE

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