P L D 1954 Lahore 265 (PLP)

KAIKAUS, J.‑Following are the facts' which give rise to this appeal. One Mehr, a Rajput of village Missa Kaswal, Tahsil Gujarkhan, died childless on the 17th of April 1950. He owned a house as well as occupancy rights in certain lands. Mutation of the land was entered in favour of Nosh a Bi appel lant who is his paternal aunt on the basis of a will alleged to have been made in her favour by Mehr. Rangbaz and two others, collaterals of Mehr, filed a suit for possession claiming that they, along with some other persons whom they impleaded as defendants, were entitled to inherit the land as well as the house. The trial Court found that the will was not proved and decreed the suit in respect of that part of the property which was proved to have been occupied by the common ancestor. Nosba Bi as well as the plaintiffs filed appeals against this decree. The appeal of Nosha Bi was dismissed on the ground that it was time‑barred. In the appeal which was filed by Rangbaz etc., the learned Senior Civil judge held that inheri tance was governed by Muslim Law and not section 59, Tenancy Act, and accepting the appeal be decreed the suit even with respect to that part of the land which was not proved to have‑ been occupied by the common ancestor. Mst. Nosha Bi has filed the present appeal against the appellate decree. The learned Senior Civil judge who heard the appeal has given two judgments one in each appeal, though in one case it is only a C short judgment, and he has prepared two decree sheets. To the present appeal copies of both the decree sheets have been attached. The facts on the basis of which the appeal of Mst. Nosha Bi was held to be time‑barred are these. The suit had been decided by the trial Court on the 20th of February 1951. An appeal was ,filed before the District judge on the 5tb of March 1951. The value of the appeal for purposes of jurisdiction was Rs. 271‑11‑

6. Out of this Rs. 200 was the market value of the house and Re. 71‑11‑6 was represented thirty times the land revenue. If the suit was an unclassed one the appeal lay to the Senior Civil judge; whereas if it was a land suit, it would lie to the District Judge. The learned District judge returned the appeal on the 17th of April 1951, on the ground that it should have been presented to the Senior Civil judge, and the appeal was presented to the Senior Civil judge on the 18th of April 1951. It was conceded before the Senior Civil judge that the appeal lay to him and not to the District judge as the suit was in fact an unclassed suit. A preliminary objection was taken before the Senior Civil judge that the appeal was barred by time. He was of opinion that the presentation of the appeal before the District judge was due to negligence and that there was no reason for extending the period of limitation under section 5 of the Limitation Act. He dismissed the appeal as time barred. He was asked to treat the appeal as a cross‑objection but he held that he could not do so as a cross‑objection required a Court fee on the market value of property. Learned counsel for Mst. Nosha Bi has argued that the decision of the Senior Civil judge on the question of limitation is wrong and I agree. I need not go into the question whether time should, under the circumstances have been extended under section 5 or not, because I am of opinion that the appeal could very well have been treated as a cross‑objection. I have verified from the record that the appeal had been presented within one month from the date when Mst. Nosha Bi received notice of the appeal filed by Rangbaz and others. She bad been served with a notice on the 9th of April 1951 and it was only nine days afterwards that the appeal had been presented to the Senior Civil Judge. There is abundant authority for the proposition that an appeal which is time barred as an appeal can be treated as a cross‑objection. I may simply refer to a Full Bench case reported as Labbu Rash v. Ram Partap (A I R 1944 Lah. 76.) where reference has also been made to three previous cases of this Court. The objection of the learned Senior Civil judge that the appeal has not been properly stamped as a cross‑objection is also not correct. It is true that cross‑objections relating to possession of immovable property are to be stamped on the value of the property because they are governed not by section 7 (v) of the Court‑Fees Act but by Article 1 Schedule

1. But it should be remembered that even appeals in cases relating to possession are not governed by section 7 (v) which relates only to suits. It was held by a Full Bench of the Punjab Chief Court in Waryam Singh v. Mahtab Singh (76 P R 1914,) that appeals in suits for pre-emption are governed by Article 1 Schedule

1. As a result the same Court fee is payable on cross‑objections as on appeals. That case was one, for pre‑emption but there can be no distinction between cases falling under subsection (v) and (vi) of section

7. Sub section (v) governs suits for possession and provides a method of valuation. Subsection, (vi) simply provides that in suits for pre‑emption value of the subject‑matter is to be determined according to subsection (v) and Court‑fee paid on such value: According to Article 1 Schedule 1 which governs appeals, and cross‑objections Court‑fee is to be paid on the value of the subject‑matter but value does not in all cases mean market value. Even in section 7 (v) of the Court‑Fees Act, the words used are "according to the value of the subject‑matter". But the section goes on to provide how much value is to be computed, so that the court‑fee is to be paid on value but the value is determined as directed by the section. In the Full Bench case to which I have referred, the value which is provided in section 7 (v) was regarded as the value for the purposes of Article 1 Schedule 1 on the ground that as the Court‑Fees Act had provided a method of valuation of a relief that method should be adopted in all cases where that relief was asked for. There is no reason why cross‑objection be not governed by the same principles as appeal, as both are provided for in Article 1 Schedule

1. In the present case Court‑fee had been paid in appeal on Rs. 223‑14‑

6. Out of this Rs. 200 represents the market value of the house and Rs. 23‑14‑6 is ten times the land revenue of the land in dispute. This valuation is correct accord ing to section 7 (v) of the Court‑Fees Act and, therefore, would be correct even when the case is governed by Schedule 1 Article

1. I hold that the cross‑objection was properly stamped. I may also point out that even if the cross‑objection had been under stamped it would have been open to the Court to grant time for the payment of Court‑fee. The Court may or may not have done so but it was its duty to consider whether the discretion which is vested in a Court to extend time for payment of Court‑fee should be exercised. As the appeal of Mst. Nosha Bi had been dismissed as time barred, this case has got to go back for a hearing on the merits. Learned counsel for the respondents urges that there is only one point involved in appeal and that is the genuineness of the will in favour of Mst. Nosha Bi and on that point, he says, there is a finding of fact by the learned Senior Civil Judge. There is no doubt that the learned Senior Civil judge has given such a finding. After dismissing the appeal of Mst. Nosha Bi, the learned Senior Civil judge proceeded to discuss the appeal filed by Rangbaz and others, and while discussing that appeal he agreed with the finding of the trial Court that the will was not a genuine document. It is to be observed that in the appeal filed by Rangbaz and others, this point was not in issue at all. They had only filed an appeal in respect of the land for which they had not been granted a decree. So far as the appeal of Mst. Nosha Bi is concerned, it has already been dismissed and the learned judge does not say that he was considering that appeal when he recorded this finding. It is even a question whether if a Court finds an appeal to be time‑barred it can record an alternative finding on merits. But in this case the learned Senior Civil judge has not decided the appeal of Nosha Bi on the basis of an alternative finding. He has recorded this finding only while discussing the appeal filed by Rangbaz and others and that finding cannot under the circumstances bind Me. Nosha Bi. This appeal is accepted and the case remanded to the learned Senior Civil judge who will now proceed to hear both the appeals, that is appeals Nos. 14 and 18 of 1951, on the merits. Parties will bear their own costs in this Court. A. H. Case remanded.