1999 PLP 1108 (CLC)

6. On the other hand Raja Muhammad Siddique, the learned counsel for respondents, controverted the arguments advanced by the learned counsel for the appellant. The learned counsel submitted that the court‑fee in pre‑emption suit is to be fixed in accordance with the provisions of clause (v) of section 7 read with clause (e)(vi) of the said Act. In support of his contentions the learned counsel placed reliance on a Full Bench case of this Court titled Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 SC (AJ&K) 55 and Sain v. Muhammad Din and others 1995 SCR

208. The learned counsel maintained that the High Court as well as the District Judge committed no error in decreeing the suit of the plaintiff. The learned counsel further contended that concurrent findings of fact recorded by the District Judge and the High Court, on proper appraisal of evidence, do not warrant any interference by this Court.

7. After hearing the respective contentions of the learned counsel for the parties, it may be stated that section 7(v) clause (d) reads as follows:‑ "(d) Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as abovementioned‑the market‑value of the land." This provision of law in our humble view is not attracted in the present case for the simple reason that the entries in Jamabandi of the year 1969 attached with the file of the trial Court positively show that the land in question is assessed to land revenue and is out of a definite share of the vendor. Thus, the B aforesaid provision has no application in the present case. In our view the provisions applicable will be section 7, clause (e)(vi) which may usefully be reproduced below:‑ "(vi) to enforce a right of pre‑emption ‑‑‑In suits to enforce a right of pre emption ‑‑‑According to the value (computed in , accordance with paragraph (v) of this section) of the land, house or garden in respect of which the right is claimed. " Paragraph (v) of section 7 reads as under:‑‑ (v) for possession of lands, houses and arQ dens.‑‑‑ In suits for the possession of land, houses and gardens‑according to the values of the subject‑matter; and such value shall be deemed to be‑ where the subject‑matter is land, and (a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue, and such revenue is permanently settled ten times the revenue so payable (b) where the land forms as an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently‑‑‑five times the revenue so payable. "

8. In a case reported as Sain v. Muhammad Din and others 1995 SCR 208, dealing with somewhat similar proposition it was observed as under:‑‑ "We may simply observe for the sake of guidance that in case the land is assessed to land revenue the court‑fee is computed under clause 7(v)(a) and (b) and if not assessed to land revenue the court‑fee is computed in accordance with section 7(v)(d) of section 7 of the Court Fees Act and valuation of the suit is determined under section 8 of the Suits. Another observation also appears in the case titled Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 SC (AJ&K) 55), which is reproduced from page 59 and is io the following effect:‑ A cursory reading of section 8 will show that the suits covered by section 7 paras. (v), (vi) (pre‑emption suits) and (ix) and (x), clause (d) are explicitly excluded from the operation of section

8. Therefore, for determining the pecuniary jurisdiction in a pre‑emption suit the proper section applicable will be section 3 of the Suits Valuation Act and the rules made thereunder. " As the plaintiff‑pre‑emptor did not file the suit for possession of the house constructed in the suit land, the jurisdictional value shall not be determined on the basis of market value of the property, but the same shall be determined on the basis of revenue assessed on the land. The learned Sub‑Judge by observing that the trial Court was not competent to hear the suit as its valuation was more than Rs.25,000 committed a legal error. The valuation of suit is not determined C on the basis of cost of improvements which are granted to a party making such r improvements. For the above reasons the contention raised by the learned counsel for the appellant that the suit was not maintainable before the trial Court and similarly the appeal before the District Judge was not competent is hereby repelled.

9. As regards the application moved in this Court by the appellant for appointing a Commission is concerned, the same also merits no consideration. In the instant case not only the Overseer inspected the spot and submitted his report regarding improvements to the tune of Rs.63,924 but he learned Sub‑Judge also inspected the spot. Irrespective of the fact that in his estimation the improvements were to the tune of Rs.76,200 but he agreed with the report of the Overseer in the judgment given by him and awarded the cost of improvements to the tune of Rs.63,

924. There is yet another factor which goes to the discredit of appellant. The appeal before the High Court was filed by the appellant, but he did not make any such prayer or raise the plea before the said forum. Even in the memo of appeal before this Court no such plea was raised. In this view of the matter the aforesaid prayer made by the learned counsel for ,the appellant is disallowed.

10. We have noticed that the learned District Judge while passing a decree of pre‑emption in favour of plaintiff‑respondents, through inadvertence did not order the plaintiff to deposit the expenses incurred on the sale‑deed either in the judgment or in the decree‑sheet. The same illegality was committed by the High Court as it simply confirmed the judgment and decree passed by the District Judge, In the interest of justice we modify the judgment and decree of the District Judge and that of the High Court in terms that plaintiff‑respondents shall get the decree of possession on the basis of their prior right of purchase of the suit land measuring 6 Kanals, out of 10 Kanals and 9 Marlas, comprising Survey No.163, Khewat No.39/34, Khata No.299/276, village Amb, Tehsil Dadyal, District Mirpur, on payment of Rs.55,000 as a consideration amount including the improvements worth Rs.63,924 totally amounting to Rs.1,18,924 plus the expenses incurred on the sale‑deed in the Court of District Judge Mirpur on or before 4th January 1999, if not paid earlier, otherwise the suit shall stand dismissed.

11. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed without any order as to costs. H.B.T./357/SC(AJ&K) Appeal dismissed.