ABDUL GHAFUR Vs. KAMAL UDDIN

JUDGEMENT

(1.) The question which is raised for decision in this second appeal is whether the plaintiffs pre-emptors were liable to pay Rs. 8,750 for the property sought to be pre-empted or only Rs. 5,500 as found by the Courts below.

(2.) Ordinarily, the question as to the price which was paid for properties sought to be pre-empted is a question of fact, which cannot be considered in second appeal. In this case, however, it is alleged that, the law as laid down in Section 17 of the Agra Pre-emption Act, has been misapplied and that the judgment of the Courts below cannot be accepted.

(3.) We think it advisable, therefore, in the first instance to consider the provisions of Section 17 above mentioned. It is not to be denied that the section is unfortunately worded and obscure. Sub-section (1) states that where in any suit on the basis of the sale, the Court finds that the plaintiff has a right of pre- emption but that the ostensible price was not the actual price, it shall proceed to ascertain the actual price and shall pass a decree for pre-emption on payment of such price.