Mst. Jana Bibi and Others vs Qadir Beg and Others

J.N. Wazir, C.J.—This is vendee Defendant's appeal and arises out of a suit instituted by Qadir Beg Plaintiff pre-emptor to pre-empt the

sale of two kanals of land comprised of khasra No. 1705/1499 of khewat No. 2020 situate in Batmalna Srinagar which was alleged to have been

sold by Shaban Beg and Ramzan Beg vendors to Qadir Batt vendee for a sum of Rs. 200 by a sale deed Ex. D.W.1 executed on the 11th Magh

2010. The trial Court decreed the suit for possession in favour of the Plaintiff pre-emptor on payment of Rs. 200 as the price of the land as

mentioned in the sale deed. On appeal by the vendee Qadir Batt, the senior Subordinate Judge remitted an issue to the trial Court in respect of the

price. The trial Court found that the price in fact was Rs. 1,000 and not Rs. 200 and made a report to that effect to the lower appellate Court. The

Additional District Judge, Srinagar, which was the lower appellate Court then did not agree with the finding arrived at by the trial Court in respect

of the price and confirmed the decree passed by the trial Court dismissing the vendee's appeal. The vendee Defendant has come up in further

appeal to this Court.

On behalf of the Appellant it is argued that the lower appellate Court has erred in holding the sale price to be Rs. 200 as mentioned in the sale

deed and not Rs. 1,000 as was found by the trial Court on remand.

We have gone through the judgment of the Additional District Judge. He has taken the view that in face of the averment made in the registered

sale deed that the price of the land is Rs. 200 it is not open to the vendee Appellant to lead evidence to show that the price was in fact Rs. 1,000.

He has completely brushed aside the evidence adduced by the Appellant to prove that the price paid by him to the vendors was Rs. 1,000 and not

Rs. 200 as mentioned in the sale deed.

The question for consideration is whether or not the vendee could adduce evidence to prove that the recital made in the registered sale deed

was incorrect. The learned Counsel for the Respondent has drawn our attention to Section 92 of the Evidence Act and has argued that u/s 92

when the agreement between the parties is reduced in writing and registered, a party to the agreement is precluded from adducing evidence for the

purpose of contradicting, varying, adding to or subtracting from the terms of the agreement.

It is contended that the Appellant was a party to the sale deed and, therefore, it was not open to him to adduce evidence to show that the price

was more than the amount mentioned in the sale deed.

Section 92 of the Evidence Act reads as under:

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a

document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the

parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying adding to, or subtracting from, its terms.

In the present case the suit has been brought by Qadir Beg pre-emptor who is not a party to the sale deed and Section 92 of the Evidence Act,

therefore, has no application to the present case. The Appellant who is a party to the sale deed would have been precluded from adducing

evidence for the purpose of contradicting or altering the terms of the sale deed if the suit would have been between the vendor and the vendee; but

Qadir Beg not being a party to the sale deed, provisions of Section 92 of the Evidence Act have no application and the vendee can show by

cogent evidence that in fact the amount paid as the price of the land is much more than that mentioned in the sale deed.

In this view I am fortified by an authority of the Allahabad High Court reported as Bhullan Singh Vs. Khushi Ram and Others, , in which it has

been held that ""in a suit for pre-emption against the vendee, the vendee can adduce evidence for the purpose of showing that a document which on

its face purported to be a deed of sale was in reality a deed of relinquishment. Section 92 excludes the admission of any oral agreement or

statement as between the parties to an instrument or their representatives in interest, but the Plaintiff in a preemption suit is not such a party."" The

same view was taken in Hiraji and Another Vs. Vishnu and Others, .

The lower appellate Court had remitted the following issues to the trial Court for finding and report:

(1) What is the price at which the sale in question in fact took place?

(2) Whether the price of the land in question was fixed in good faith or paid?

(3) In case of non-proof of the above issue, what is the market value of the suit land?

The trial Court recorded evidence adduced by the parties and the vendee Appellant produced an agreement executed eight months prior to the

sale deed, by him in favour of the vendor. That agreement has been proved by the evidence of the scribe Amarnath petition-writer. In that

agreement the price of the land in dispute is mentioned as Rs. 1,000 (Rs. 800 due from the vendor to the Appellant vendee on the basis of a bond;

Rs. 180 paid in cash and Rs. 20 to be paid at the time of registration of the sale deed).

The learned Additional District Judge has disbelieved the recitals in the agreement on the score that the bond for Rs. 800 was not produced before

the scribe who wrote that agreement. In our opinion, it was not necessary for the Appellant to produce the bond for Rs. 800 at the time the

agreement was executed especially when the vendor did not contest his liability and did not require the bond to be produced at the time the

agreement was executed.

The Appellant has given cogent explanation for having mentioned Rs. 200 as the sale price in the sale deed. He has stated on oath that he was

given to understand that no one was going to preempt the sale and it was not necessary to mention in the sale deed the actual price paid for the

land and instead he was asked to pay the amount required for excess stamp and registration to the vendor. According to the Appellant he did not

object to the amount of Rs. 200 being entered in the sale deed as the price of the land.

The Appellant has further adduced evidence to show that in the years 2009 and 2011 the vendor sold portions of land from the same khewat at

Rs. 500 and above per kanal.

The Plaintiff pre-emptor has not adduced any cogent evidence in rebuttal. In face of the convincing evidence, documentary and oral, produced

by the Appellant, the finding arrived at by the lower appellate court that the price of the land was Rs. 200 cannot be allowed to stand. In our view

the trial court had rightly held the price of the land as Rs. 1,000 and not Rs. 200 as mentioned in the sale deed.

We, therefore, allow the Defendant's appeal and hold that the price of the land is Rs. 1,000 instead of Rs. 200 as held by the lower appellate

Court. The Plaintiff shall be entitled to a decree for possession of the suit land on payment of Rs. 1,000 on or before 31-12-1959 failing which the

suit shall stand dismissed. Keeping in view the circumstances of the case we leave the parties to bear their own costs in this Court.

K.V. Gopalakrjshnan Nair, J.

I agree.