SAKALRAJ DUBE Vs. UDIT DUBE

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by two persons, Sakalraj and Mahabir, to enforce a right of pre-emption which they claimed to possess over a particular share in Mauza Majhganwan, mahals permanent and fluctuating and in Mauza Jagot Bela on payment of Rs. 100. The defendants are vendors and vendees of the same property. The Court of first instance found that the consideration mentioned in the sale-deed between the defendant vendor and the defendants-vendees was a sum of Rs. 299. It accordingly granted the plaintiffs a decree for pre-emption upon payment of a sum of Rs. 299 to the defendants-vendees within 30 days of the date of the decree becoming final. The plaintiffs-pre emptors appealed and the lower Appellate Court modified the decree given by the Court of first instance so far that it substituted as the price of the property Rs. 239 in place of Rs. 299.

(2.) THE pre-emptors have come in appeal to this Court and they contend that the lower Appellate Court should have followed the rule laid down in Abdul Majid v. Amolak 29 A. 618 : A.W.N. (1907) 202 : 4 A.L.J. 531. THEy also cite an unreported case of this Court. THEy further contend that as they have produced evidence as to the value which shows that the price entered in the sale-deed far exceeds the market-value of the property and as no evidence has been given by the other side, the finding as to the amount paid should have been that Rs. 100 were paid. In any case, they say that the Court should have ascertained what the marketvalue really was. On hearing the arguments addressed to me, it would appear that the appellants went into Court with a statement contained in the plaint that a sum of Rs. 100 was the real consideration of the sale-deed. THEy put in evidence certain revenue papers showing that the amount of revenue due upon the property sold amounted to Re. 1 3-3 1/3 and also a decree passed in another suit in respect of Mauza Majhganwan in the year 1908. In that deed, a 4/5-pie share of Mauza Majhganwan was sold for Rs. 49. Beyond this, they adduced no evidence of any kind whatsoever. It is true that one of the plaintiffs was examined and in his examination he gives no personal knowledge of what the consideration paid was. He alleges that Chandrika, one of the vendees, told him that Rs. 100 had been paid and that, in order to defeat preemption, a sum of Rs. 900 bad been entered in the three sale-deeds one of which would relate to the property in dispute. THE learned Vakil for the appellants laid great stress, upon what was laid down in Abdul Majid v. Amolak 29 A. 618 : A.W.N. (1907) 202 : 4 A.L.J. 531 and urged that his clients had produced evidence, which, though slight, was sufficient for the purpose of showing that the price entered in the sale-deed in this case was fictitious, that having done this it was for the parties to the sale to show that the price entered in the sale-deed was actually paid and that as they had adduced no evidence touching this matter, the lower Appellate Court ought either to have accepted the sum of Rs. 100 stated by them or framed an issue for decision as to what was the market-value of the property sold. THE case cited, namely, Abdul Majid v. Amolak 29 A. 618 : A.W.N. (1907) 202 : 4 A.L.J. 531 is the outcome of a long chain of cases going back to the case of Bhagwan Singh v. Mahabir Singh 5 A. 184 if not further. It lays down the three following principles as a guide for the determination of the cases of the nature now before the Court. THE learned Judges who decided that case summed up their decision in the following words: THE plaintiff by showing that the price entered in the sale-deed was greatly in excess of the market-value of the property and by giving evidence of the price paid on sales of other property in the village and in the vicinity was held to have discharged the burden, which prima facie lay on him. That being so, the onus was transferred to the defendants and their evidence to prove that Rs. 3,5C0 was actually paid was not accepted by the Courts below." THE Court below had determined what the market price was and granted a decree for pre-emption on payment of the market price so found. THE question then arises, "have the plaintiffs in the present case given prima facie evidence to show that the price entered in the sale-deed is fictitious"? I have already set out what was the evidence which the plaintiffs gave in the present case. It amounts to (1) a paper showing what the Government revenue on the property in dispute in Mauza Majhaganwan was, (2) to an ipse dixit on the part of the plaintiffs, who gave evidence that Rs 100 was the actual sale price paid, and (3) to a conversation alleged to have been held between this plaintiff and one of the defendants regarding the price paid. It appears to me that this amount of evidence hardly satisfies even the slight evidence which the Courts have held sufficient for the purpose of showing that the price entered in the sale deed was fietitious. No attempt was made to show what was either the revenue or the value of the property sold in Bala Jagot. No attempt was made to cite Chandrika and to put him into the witness-box so that the Court might judge how far there was any substance in the account given by the plaintiff of the alleged conversation. THE revenue paper put in merely by itself and without any evidence to explain it, is, in my opinion, of little value. THE appellants could easily have summoned the Patwari or Registrar Kanungo and ascertained from them what is the average or normal market-value of the property as compared with the revenue payable on it. THE mahals sold are also described as "mustakil and ihtimali." Moreover, it is not as if the appellants or their legal advisers had not the warning of the nature of the evidence which the Courts should require in cases of this kind. In Aghar Singh v. Raghuraj Singh 9 A. 471 the learned Judges granted a remand but added "in future we ought to hesitate before sending a ease of this kind back. It is a part of the plaintiff s case to show either what was the actual contract price or to give substantial evidence, on which the Judge can act, showing what was the market value. It is necessarily a part of the plaintiff s case that the price should be fixed by the decree of the Judge. For, unless the Judge is in a position to fix the price, it is obvious that the decree would be ineffective and a nullity. In future, in cases similar to the present, if the plaintiffs are not prepared to give substantial evidence, on which a Judge can act, as to the market-value, those plaintiffs will deserve to have their cases dismissed." I cannot find that this dictum of the learned Judges has been questioned in any subsequent case. THE result is, that I hold that evidence sufficient for the purpose of showing that the price entered in the sale-deed has not been given and I dismiss this appeal with costs which will include fees on the higher scale. THE amount awarded by the lower Appellate Court must now be paid within 30 days of this date; otherwise the suit will stand dismissed with costs. THE office will see that this decree is prepared with due diligance and sent to the Court below.