1983 PLP 117 (CLC)

Sh. Karim Bakhsh far Respondents. Dates of hearing : 5th and 10th October, 1982. The facts necessary for the disposal of this Second Appeal are that a suit for possession through pr.‑emption of the land in dispute situated in the area of Mauza Danda Shah Bilawal, Tehsil Talagang, District Attock, was filed by the present appellant with the averment that the transaction though was given the garb of an exchange, was in reality a sale. It was further asserted that consideration of the sale was Rs. 1,000 which was also the market value of the land in question. The superior right of pre‑emption was claimed by alleging the plaintiff‑appellant was a collateral and an heir of the transferor which qualification was not possessed by respondent No. 1, the vendee. The mutation of exchange (Exh. P. 18) was attested on 26‑3‑1972 in favour of Khawaja Nazirn‑ud‑Din, respondent No. 1, and in column No. 12 of the mutation it was entered that this exchange was in lieu of land transferred in favour of Muhammad Shafi vide mutation No. 3362 of village Thamewali, Tehsil and District Mianwali. According to this mutation No. 3362 dated 15‑3‑1972 Khawaja Nazim‑ud‑Din respondent had transferred through exchange the land situated in village Thameywali measuring about 189 kanals 14 marlas.

2. The learned trial Court settled the issues arising out of the pleadings of the parties and after recording evidence decreed the suit of the appellant pre‑emptor vide judgment and decree dated 10‑1‑1976. Khawaja Nazim‑ud -Din, vendee‑respondent filed an appeal challenging the aforesaid decree. In the memorandum of appeal it was stated that the value of the suit in the trial Court for the purposes of court‑fee and jurisdiction was Rs. 4,680 but for the purposes of appeal it was Rs. 1.000. A court‑fee stamp of Rs. 75 was accordingly axed on the memorandum of appeal. The office recorded a note on the memorandum of appeal to the effect that the question of court fee payable, requires determination. Ultimately, the learned Additional District Judge vide his judgment and decree dated 3‑6‑1979 accepted the appeal, set aside the decree of the trial Court and dismissed the suit after recording the view that issue No. 3 was not correctly decided by the learned trial Court. Issue No. 3 was "Whether the transaction in question is sale and not an exchange" and the learned first appellate Court was of the view that the onus to prove, that the transaction subject‑matter of mutation No. 480 was a sale, was on the appellant‑plaintiff and the said onus had not been discharged by producing cogent evidence. There is no discussion on the question of court‑fee payable in the judgment passed by the learned Addi tional District Judge. This led to the filing of the present Second Appeal under section 100, C. P. C.

3. Learned counsel for the appellant argued that the memorandum of appeal filed by the respondent was insufficiently stamped and, as such, was not a proper and competent appeal and that despite the objection by the present appellant, the trial Court proceeded to accept the appeal without determining the question of the valuation of the appeal and the court‑fee payable. It was also submitted that the first appellate Court erred in law in reversing the finding of trial Court on issue No. 3 us the said finding was recorded after careful perusal of the evidence on record.

4. Learned counsel for the respondent in reply submitted that objection as to deficiency of the court‑fee was not raised before the lower appellate Court and, as such, the sane cannot be allowed to be taken at this stage. It was added that the payment of court‑fee was a matter between the Court and the litigant and in the circumstances of the case and in view of the fact that no objection was raised before the lower appellate Court, the loss of revenue, if any, can be ordered to be made good by this Court. It was asserted that the learned trial Court under issue No. 5 held that the pre emption value of the suit land was Rs. 1,000 and that Rs. 3,680 was held to be the value of improvements effected by the vendee in the land in question and that the vendee cannot be asked to pay court‑fee on the value of the improvements as the vendee‑defendant sought in appeal the relief that the suit be dismissed negativing the claimed right of pre‑emption, the value of which was admittedly determined at Rs. 1,000 i.e. under issue No.

5. According to the learned counsel the court‑fee of Rs. 75 paid on the pre emption value of the suit land was correctly paid. In this connection, reliance was placed on the decision in The Reference under section 5, Court Fees Act ((1899) 23 Mad, 84) and certain other precedents wherein it was laid down that relief prayed for is to determine the question of court‑fee. I have not noticed these other judgments as the same were not really on the point. which requires determination. in this appeal. On merits, learned counsel for the respondent supported the finding recorded by the first appellate Court.

5. On the question whether the transaction was in reality an exchange or sale, the finding recorded by the learned Additional District Judge is sound and justified as the appellant on whom the onus of the issue admittedly lay, miserably failed to prove passing of money consideration between the parties. The only witness namely Fazal Haq (P. W 2) produced to prove this fact was disbelieved by the learned trial Court. Even before me the testimony of this witness is not being relied upon. The consideration in this case was nothing else but the transfer of ownership of land of the other village. Now the question as to how the said land was obtained by one of the parties was not to be and could not be gone into in the present suit. The learned trial Court in the circumstances of the present case was not right in holding that the gift of the land in Thameywali made vide mutation No. 3153 of 13‑11‑1970 was illegal. The approach of the learned trial Court was thus wholly fallacious. The learned Judges of the Supreme Court in Shah Wali v. Allah Rakha and another (P L D 1982 S C 17) observed that ‑ "Indeed it is the nature of the consideration paid for the transfer which determines toe nature of the transfer itself. If the consideration for the transfer is not paid in cash but is paid by transfer of the ownership of some property, it would be only an exchange and not a sale." As the consideration in this case was paid by transfer of the ownership of the land, the finding recorded by the learned first appellate Court that the transaction was an exchange and not a sale, must be upheld.

6. The matter does not end with the above finding on merits as the objection as to non‑payment of proper court‑fee in the appeal before the lower appellate Court and its effect on the decree passed remains to be deter mined. Learned counsel for the respondent, as noted above, relied on the decision reported as I L R 23 Mad.

84. In that case the plaintiff sued for recovery of land from defendant Nos. 1 to

3. The contesting defendant contended that the land was not liable to surrender and that in any case he is entitled to receive compensation for improvements. The District Munsif disallowed the claim for improvements but decreed the surrender of land. The question was whether the value of improvements could also be taken into account for the purposes of levying the court‑fee, the subject‑matter of the appeal being the same and that in the suit‑the question of improvements raised incidentally. The learned judges held that the value of the improve ments should not be taken into consideration for calculating the court‑fee. They held as the claim for improvements was not the subject‑matter of the suit but was merely incidental to the decree for possession, the fee payable by the appellant should be that which was payable in a suit for possession of land.

7. Learned counsel for the respondents argued that the question of improvements was raised in the written statement and was allowed as under the pre‑emption law a successful pre‑emptor is liable to pay compensation for improvements and as held in the above‑noted case, the question of improve arose incidentally and was not the subject‑matter of the suit filed by a pre‑emptor himself. The precedent cited by the learned counsel was considered in Mahadevi v. Thavazhl Karnavan (A I R 1939 Mad. 49) and it was observed that the observation of the learned Judges in the precedent case was only obiter as it was not necessary for them to have made that observation for the decision of the case before them. The observation treated as obiter read as follows :‑ "We think the proper answer to the reference is that on appeal even where the only question raised is as to the value of the improvements, the appellant should not be called upon to pay any fee other than that payable in a suit for possession of land." This observation was treated as 3n obiter dictum even in Re : Paidal Nayar (A I R 1926 Mad. 223) and it was held that the plaintiff should pay court‑fee in propor tion to the value of the relief he sought in appeal and that the court‑fee payable in the case before them must be determined in accordance with the value of improvements which the appellant sought to avoid. As for as this Court is concerned, it is well‑established that if the relief sought in appeal is restricted to the value of improvements then the court‑fee is to be paid with reference to the amount of compensation en account of improvements sought to be increased or decreased. Reference may be made to Surain Singh v. Sundar Singh and others (A I R 1929 Lah. 879). In that case two suits for pre‑emption were filed by two rival pre‑emptors and a conditional decree was passed in favour of one on payment of Rs. 8,000 failing which the other pre‑emptor was to be entitled to pre‑empt. The other pre‑emptor being dissatisfied against the order, appealed to have the decree in favour of his rival set aside and for dismissal of that suit on the ground of collusion with the vendee. He also claimed for reduction of payable amount to Rs. 5,000 and stamped his memorandum of appeal with 10 times the amount of the jams. It was held that as the appellant had not solely asked for a reduction of the pre‑emption money from Rs. 8,000 to Rs. 5,000, but struck at the very root of the case by asking for dismissal of the suit, the memorandum of appeal should not bear any ad valorem fees calculated on Rs. 3,000 and that it was not under stamped.". Reference may also be made to a Full Bench judgment rendered in the case of Waryam Singh v. Mahtab Singh and others ((1913) 191 C 961). The facts of the case before the Full Bench were that the plaintiff sued to pre‑empt certain land on the allegation that the same was sold by defendant No. 1 to defendant No. 2 for consideration of Rs. 11,000 though through collusion a sum of Rs. 56,000 had been got entered in the revenue record. The plaintiff contended that the actual value of toe land .vas Rs. 11,000, and he claimed to pre‑empt upon payment of that sum. The value of the suit for the purposes of court‑fee as per the then provisions of section 7, clause (vi) of the Court Fees Act, 1870, was stated to be Rs. 368.8 i. e. the sum representing 5 times the revenue assessed upon‑ the land and ad valorem stamp on that sum was affixed on the plaint. Upon the objection of the defendant‑vendee and after enquiry through a local commissioner as to the value of the suit, the District Judge directed the plaintiff to pay ad valorem court‑fee on Rs. 56,000 as that amount had been entered in the revenue record as the sum paid by the vendee to the vendor and representing approximately the real value of the land. The plaintiff in compliance of the order made up the deficiency. The District Judge ultimately granted a decree for pre emption upon payment of Rs. 56,000 and from this decree both the pre emptor and the vendee filed separate appeals in the High Court. The pre emptor in the appeal contended that he was entitled to pre‑empt upon payment of Rs. 11,000 only and the vendee in his appeal contended that the plaintiff had no right of pre‑emption and that his suit should be dismissed. On each of the memorandum of appeal a court‑fee of Rs. 27.12, the sum representing ad valorem fee parable upon 5 times the land revenue assessed, was affixed. The question referred was whether these memoranda of appeal were properly stamped. The Bench returned the opinion that this question must be decided with reference to the terms not of clause (vi) of section 7 of the Act which was net applicable to the appeals in pre‑emption suit but of Article 1 of First Schedule to the Act which provides that the court‑fee upon a memorandum of appeal is to be computed ad valorem with reference to the amount or value of the subject‑matter in dispute. Dealing with the appeal preferred by the pre‑emptor, It was held that the object of his appeal was to have the decree of the District Judge varied into one granting him the right to pre‑empt the property on payment of Rs. 11,000 instead of upon payment of Rs. 56,000 or in other words, he asked the appellate Court to reduce amount payable by him by the sum of Rs. 45,

000. It was held that latter sum represented the value of the subject‑matter of his appeal and it was upon that sum that he must pay the ad valorem fee specified in Article 1 of the First Schedule to the Act. As regards the appeal by the vendee, it was observed that his contention was that the plaintiff was not entitled to the land and the subject‑matter of his appeal was, therefore, the land which according to his allegations had been wrongly decreed to the plaintiff. In such a case, the court‑fee to be affixed to the memorandum of appeal is to be computed according to the value of the subject‑matter of his appeal, i. e. the land and the value of such land for the purposes of court‑fee must be estimated in accordance with the provisions of section 7, clause; (vi) of the Court Fees Act. As a result, the Full Bench held that the memorandum of appeal filed by the plaintiff was not properly stamped but that filed by the vendee‑appellant was stamped with the requisite court‑fee. The ratio decidendi of the case thus is. that it is the value of the subject‑matter to dispute in appeal before Court which is to determine the court‑fee payable. The relief sought by the respondent, who was appellant in the lower Court was of setting aside the decree of pre‑emption obtained by the present appellant in respect of the land in dispute.

8. The value of the subject‑matter of the appeal i. e. the land is to be determined in accordance with the provisions of section 7, clause (vi) read with clause (v) of the Court Fees Act, 1870. According to the amended provisions in force at the time of filing the appeal, the amount of fee payable was to be computed on the value of the subject‑matter, and in suits for possession of land such value is to be deemed to be fifteen times of the net profits, where net profits have arisen during the year next before the date of presenting the plaint. But where no such net profits have arisen, the court fee is payable on the market value of such land. The land in dispute was held to be mostly Banjar Qadim and the market value of the same was assessed at Rs. 1,000 under Issue No. 6, though the plea of the vendee was that its market value cannot be less than Rs. 3,

000. Moreover, the claim of the appellant having effected improvements in the land to the extent of Rs. 3,680 was upheld, meaning thereby that according to the trial Court the value of the land at the time of institution of the suit was Rs. 4,

680. It may be added that in cases the net profits had arisen from the land subject‑matter of the appeal, court‑fee would have been payable on fifteen times of such net profits. In view of the admitted nature of the land in dispute the court fee was payable on the market value of the land and the improvements effected on the land would naturally increase the market value of the land. In this view of the matter, the vendee was not entitled to pay court‑fee on Rs. 1,000 only. The respondent‑vendee affixed court‑fee believing bona fide that the court‑fee was payable in the appeal on Rs. 1,000 the amount which was held by the Court to be the pre‑emption value of the suit land. This belief was entertained on the basis of the view taken in the above‑noted Madras case. In these circumstances, the respondent‑vendee would have been allowed time to make up the deficiency in the court‑fee had this question been raised by the appellant in the lower Court. In this view of the matter, the appellant is not justified in urging that the memorandum of appeal having been deficiently stamped merited to be dismissed on the ground of limitation. Moreover the appellant cannot urge that he had raised the said objection in appeal, as the impugned judgment is silent in this respect. Even the affidavit of the learned counsel, who appeared before the lower Court, was not filed in support of the submission that the point of deficient court‑fee and limitation was raised in the lower Court. The policy of the law is that the objection as to court‑fee should be raised as early as possible and before the Court where the document deficient in court‑fee has been filed and such an objection should not ordinarily be allowed to be raised subsequently in the higher Courts. In Rachappa Subrao Jadhav Desa v. Shiduppa Venkatrao Jadhav Desai (AIR 1918PC 188) it was observed that :‑ "The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. It is not competent to a defendant in a suit to utilise the provisions of the Act at the appellate stage, not to safeguard the interests of the State, but, to obstruct the plaintiff, i. e., he cannot contend that the Court wrongly decided to the detriment of the revenue, but that it dealt with the case without jurisdiction." In the instant case, the objection as to court‑fee cannot be allowed to prevail as that would be quite unjust and as on merits the appellant has no case whatsoever.

9. In these circumstances, the appropriate course of action appears to be to direct the respondent to make up the deficiency of the court‑fee in order to sec‑ire payment of revenue. The respondent‑vendee is accordingly directed to make good the deficiency in the court‑fee by depositing the necessary stamps in this Court within three weeks of this judgment, failing which his appeal before the first appellate Court shall stand dismissed, with the result that the decree passed by the trial Court in that event shall stand revived and restored. In case the deposit is made as directed, this appeal shall stand dismissed. In the circumstances of the case, there will be no order as to casts. S. Q. Order accordingly.