GULZARI LAL Vs. MOHAMMAD SHAFI KHAN

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit brought by the plaintiffs to pre-empt certain property sold by defendants 3 and 4 to defendants 1 and 2 under a sale dead dated 2 December, 1932 for a consideration of Rs. 11,596. The plaintiffs case is that the animal consideration is only Rs. 5436 and that the amount entered in the sale dead bus been inflated to discourage a suit for pre- emption. The suit was contested by the vendees and they alleged that the ostensible consideration entered in the deed is the actual consideration. There is no disputes in this case with regard to the preferential right of the plaintiffs to pre- empt this property as the vendees are admittedly strangers in this village. The sale consideration is comprised of the following items: (1) Hat off against the amount due under the mortgage dated 22 December, 1923, Rs. 6160, (2) Set off against the amount due under the mortgage dead dated 15 June, 1926, Rs. 9436.

(2.) The vendee Gulzari Lal and one Parshadi Lal were the mortgagees in the first mortgage deed and Gulzari Lal and Ram Chander were the mortgagees in the second. Gulzari Lal has been examined in this case and ha states that the sums duo under the two mortgagee mentioned above were set off against the sale conderation under the sale deed in question and that the amount due to other mortgagees has been paid off by him. This statement has not been rebutted by any evidence on behalf of the plaintiffs. The learned Civil Judge came to the conclusion that the real consideration was as alleged by the plaintiffs and he therefore decreed the suit for pre-emption on payment of Rs. 5436. The defendants have now preferred this appeal, The only point for determination is whether the price entered in the Bale deed is genuine or not. From a perusal of the plaint it appears that the plaintiffs nowhere alleged that the mortgage deeds mentioned above were not genuine. The learned Civil Judge also has not found that the mortgage deeds were fictitious. Under the circumstances it is not possible to hold that the sale consideration entered in the sale deed is not genuine. Learned Counsel for the respondents has taken us through the evidence in order to show that the income from the property is very low. He relied upon the statement of the patwari who has stated that the profits from the share in dispute after remissions come to only Rs. 110 per annum, although the recorded collection a are Rs. 558.4.11. The patwari is an attesting witness to the sale deed and admittedly helped the parties, that is the vendors and the vendees to execute the sale deed in question. He, on his own showing, being a party to a fraudulent transaction, cannot be considered a very satisfactory witness to prove that the price entered in the sale dead is incorrect. In his statement he has not stated anything with regard to the remission in revenue. It is well known that revenue was in every case reduced where remissions in rents were allowed. The patwari is also silent with regard to "sair" income. Gulzari Lal, the vendee, says that he sold "khar" for Rs. 85. The area of the land in dispute according to the jamabandi is about 520 acres and the culturable area comes to about 220 acres.

(3.) On the basis of the price entered in the sale deed the price of the culturable land will come to about Rs. 50 per acre. This by no means is an unusually high price. Learned Counsel for the respondents contends that the vendees were imposed upon by the vendors and were made to believe that the profits of the land were vary high and that the price paid by the vendees was on the basis of an exaggerated income which had no existence in fact. In support of this theory reference has been made to the statement of Gulzari Lal wherein ha says that the vendors showed him a "parcha" from which it appeared that the income of the share in dispute was Rs. 965. But Gulzari Lal farther adds that in any event ha would have purchased the property for Rs. 11,596. The ?parcha? referred to by Gulzari Lal has not been produced. It is possible that Rs. 965 may have represented the entire collection of the share in dispute including the "sair" income which in some particular year may have been high. This suggestion however is contrary to the case set up by the plaintiffs in the plaint where they haw definitely stated that the vendors and the vendees had conspired together to enter a fictitious consideration in the sale deed to defeat the plaintiffs claim of pre- emption. We do not find any force in the siggestion.