P L D 1962 (W (PLP)

Mir Faqir Muhammad Noor Nur Muhammad Jalal Din Gulu Mst. Bibian Bawala (died issueless) It was alleged that Mir was the occupancy tenant of the disputed land, and on his death it was inherited jointly in equal shares by his two sons Muhammad Noor and FaqIr. On the death of Muhammad Noor his one‑half share was allotted to his son Jalal Din, and on his death his daughter Mst. Bibian plaintiff inherited the above‑mentioned one‑half share. The one‑half share of Faqir son of Mir was inherited by his son Nur Muhammad. The latter was succeeded by Gulu and on the death of Gulu it was inherited by his son Bawala. It Is alleged that Bawala died issueless but the inheritance Mutation No. 1671 was wrongly attested on 15‑11‑54 in favour of Mst. Begum Jan defendant No.

1. The plaintiff alleged that Mst. Begum Jan was not the daughter of Gulu, and therefore, the above‑mentioned mutation was wrongly attested in her favour and that it was not binding on the plaintiff, and that she was entitled to the entire property left behind by Bawala. Ultimately, after the passing of the North‑West Frontier Province Tenancy Act of 1950, the plaintiff became the owner of the suit property. It was alleged that defendant No. 2 in collusion with defendant No. 1 brought a suit against the latter regarding the land belonging to Bawala, and on the basis of a compromise, consent decree was passed in favour of defendant No. 2 on 16‑12‑

54. On the basis of the above mentioned decree, Mutation No. 1672 was attested on 17‑2‑55 in favour of defendant No. 2 Sayed Qasim Shah regarding 3/4th share out of 1042 Kanals 5 Marlas of land. Subsequently by Mutation No. 1939, attested on 26‑6‑55, 1/4th share of the suit land was transferred to Ali Asghar defendant No.

13. Later, Mufti Muhammad Idris, Advocate, Mansehra, was also impleaded as a defendant. The suit was resisted by the defendant and nine issues were framed. The issue which is material for the determination of this revision petition is as under :‑ "Whether the plaint has been undervalued for the purposes of Court‑fee and jurisdiction.

2. Mr. Faiz Muhammad Khan, Sub‑Judge, 2nd Class, Mansehra, who had tried the suit in its initial stages, by his order dated 30‑3‑61 (Order Sheet No. 23) had appointed Mr. Muhammad Afzal Khan, Advocate, Mansehra, as commissioner for finding out the value of the suit property. The commissioner came to the conclusion that the market value of the land not assessed to land revenue, the value of the land under the houses and the value of the superstructure in all amounted to Rs. 5,319‑8‑

0. This report was objected to by the defendants. Ultimately the report of the commissioner was set aside by the trial Judge by his order dated 29‑5‑61, because the commissioner was not accom panied to the spot by the patwari, and the defendants were also not informed by him. He accordingly appointed Muhammad Aurangzeb Khan another local pleader as a commissioner, Muhammad Aurangzeb Khan inspected the spot and came to the conclusion that the value of the houses, daraiat and Bandis amounted to Rs.1,788‑8‑

0. The land under the forest was valued by him at Rs. 5,212‑8‑0 at the rate of Rs. 5 per Kanal, and the value of the trees standing in the land amounted to Rs. 90,000 and thus the value of the suit property, i.e., the forest, the land underneath, the cattleshed and the land underneath it in all amounted to Rs. 97,

001. This report was also objected to by Sayed Qasim Shah defendant No. 1 by his application dated 26‑6‑1961, alleging that the report of the commissioner was incorrect because there were trees worth more than Rs. 15 lacs standing in the land. Parties filed their objections, and they were called upon to produce their evidence in support of their respective contentions on 6‑7‑1961. On the last‑mentioned date, after recording the evidence of the parties, Mr. Faiz Muhammad Khan, Sub‑Judge, by his order of the same date, sent the file to the District Judge, Hazara, for transferring it to a Court of competent jurisdiction, as it was beyond his pecuniary jurisdiction, Mr. Shafi‑ur‑Rehman, District Judge, Hazara, by his order dated 19‑7‑61, transferred the file from the Court of Sub‑Judge, 2nd Class, Mansehra, to the Court of the Senior Sub‑Judge, Hazara. Mr. Muhammad Humayun Khan, Senior Sub‑Judge, after hearing the counsel for the parties, about the objections, by his order dated 0‑9‑61, found that the price of the six trees marked, standing in the land in dispute, according to the admission of the counsel for the parties, amounted to Rs. 2,

600. Relying upon A I R 1938 Oudh 40, he found that Court‑fee can be levied on the price of those trees only which have been cut or marked for cutting. Relying upon the report of Aurangzeb Khan, the trial Judge found that the value of the land, according to the report of the commis sioner, amounted to Rs. 5,212‑8‑0 and that of the six marked trees amounted to Rs. 2,600 and in all it amounted to Rs. 7,812‑8

0. The plaintiff bad claimed 3/4th share of the suit property, therefore, she was directed to make up the deficiency in Court fee on Rs. 5,

859. The aggrieved Sayed Qasim Shah has come up on revision to this Court.

3. The learned counsel for the respondents has taken a preliminary objection saying that the revision petition is not competent, as it is directed against an interlocutory order which is not 'revisable. The learned counsel for the petitioner, however, contends that an interlocutory order which decides an issue finally in the case is a `case decided', and is revisable. In support of his contention he referred me to Bhal Jiwan Singh v. Mst. Mahboob Jan and others (A I R 1944 Pesh. 1). The facts of that case briefly are that Jiwan Singh obtained a preliminary decree for possession by partition of half of a house in which Fida Muhammad and several others were interested. On appeal the order of the Court below was maintained and Jiwan Singh was granted costs and Rs. 180 as mesne profits. Fida Muhammad was represented to be a minor in these proceedings. In execution of the decree of the Court of the Judicial Commissioner for the payment of Rs. 180 and costs, Jiwan Singh put the remaining half of the house to auction in execution proceedings and pur chased it himself. The sale was confirmed on 24‑7‑

42. Jiwan Singh, however, agreed that 1/10th share 4n half of the house or 1/20th share in the whole house, belonging to Fida Muhammad should be excluded from sale. On 22‑5‑42 an application was made on behalf of Fida Muhammad to the trial Court informing it that Fida Muhammad had joined the army and the suit should be stayed under the Indian Soldier's Litigation Act, and the case was ultimately stayed. Jiwan Singh preferred a revision petition in the Court of the Judicial Commissioner, and it was held by a D.B. that the order deciding the question of staying the suit under the Soldier's Litigation Act was a `case decided', and therefore, the interlocutory order passed by the trial Court was revisable. Continuing his argument the learned counsel submitted that the trial Judge did not decide the objection application given by the defendant‑petitioner against the report of the commissioner, and therefore, this amounted to material irregularity and illegality, justifying interference by this Court in the exercise of its revisional jurisdiction. From the file it appears that after recording the evidence produced by the parties against the report of the commissioner, Mr. Faiz Muhammad Khan, Sub‑Judge, 2nd Class, Mansehra, had fixed it for argument when in the meantime the case was transferred from his Court to the Court of the Senior Sub‑Judge Hazara, on his request by the District Judge, Mr. Muhammad Humayun Khan by his order dated 30‑9‑61, came to the conclusion that the value of the suit for purposes of Court‑fee and jurisdiction amounted to Rs. 5,859, because in his opinion Rs. 2,600 was the value of the marked trees and the rest was the value of the land under forest, the cattleshed and the land underneath and bad relied upon A I R 1938 Oudh

40. The material facts of the suit giving rise to case of Mst. Jwala Devi and another v. Ahmad Hassan (A I R 1938 Oudh 40) briefly are that a suit was brought for possession of about 31 blghas of land situated in the village of Matwa Mohal Gaud Shankar together with trees and buildings situated thereon, and for Rs. 2,053‑8‑0 as damages and mesne profits. It was found that the building in question was not a tenant's house or any other building necessary for the enjoyment of the land but a substantial structure used as a tannery. Similarly the trees in suit were not self‑grown trees which might be said to go with the land but are said to constitute a grove planted by the plaintiff‑respondent. It was held that in such circumstances the building and grove could not be said to be an appurtenant to the land and hence a separate Court‑fee under section 7 (v) (e) should be paid on the market value of the building and the grove. Relying upon the above mentioned authority the Senior Sub‑Judge came to the conclusion that since the trees standing in the land in dispute were self grown and not planted, therefore according to this authority, they will go with the land and the only trees on which Court‑fee is to be paid are the trees which are marked for cutting, and so assessing the value of the suit property for the purposes of Court -fee and jurisdiction he accepted the report of the commissioner' regarding the market value of the land under the forest, which amounted to Rs. 5,212‑8‑0 at the rate of Its. 5 per Kanal, an had also taken the price of the marked trees into consideration and therefore, it does not appear that he had misunderstood the correct legal position and had failed to apply the correct law, and so there is no material irregularity. The learned counsel for the respondents relied upon Messrs Gupta & Co. v. Messrs Kripa Ram Brothers (A I R 1934 All. 60) where it vi as held that "a mere decision given by a Court in the trial of a suit as to the amount of the Court‑fee payable does not amount to a "case decided" nor is it necessarily an irregularity in procedure or illegality or a refusal to exercise jurisdiction and therefore no revision on such a decision is competent." In another case Secretary of State v. Raghunathan and others (A I R 1933 Mad. 506) it was held by a Division Bench that where a favourable decision has been given as regards Court‑fee to the plaintiff, the High Court has no power of revision either under section 115, C. P. C. or under section 107, Government of India Act. Lastly, counsel for the respondents relied upon H. H. 1qbal Begum and another v. Abdul Samad (P L D 1961 Lah. 298) wherein it was held by Masud Ahmad, J. that: "Where a decision on the question of Court‑fee has been given by the trial Court in favour of the plaintiff it is not open to the defendant to apply for revision under section 115 of the Civil Procedure Code, 1908. But there the objection raised before the trial Court was not merely of insufficiency of Court fee but also that that Court had no jurisdiction to try the suit, the decision of the trial Court is revisable under section 115 of the Civil Procedure Code, 1908. Although error in a decision of a Subordinate Court did not by itself, involve that the Subordinate Court had acted illegally or with material irregularity, so as to justify interference, In revision, under subsection (c) of section 115 of the Code, nevertheless, if the erroneous decision resulted in the Subordinate Court exercising a jurisdiction not vested in it by law, or in failure to exercise a jurisdiction so vested, a case for revision arises under sub section (a) or subsection (b) of section 115 of the Code." From the authorities cited above 1t is abundantly clear that the decision given by the Senior Sub‑Judge as to the amount of the Court‑fee does not amount to a `case decided', and is, therefore, not revisable. The question relating to the jurisdiction of the Court also does not arise, because the case was ultimately transferred to the Court of Senior Sub‑Judge, Hazara.

4. As a result of the foregoing discussion, I maintain the order of the Court below, and dismiss this revision petition with costs KBA. Petition dismissed.