1986 PLP 2576 (MLD)

KHIZAR HAYAT, J.--Some agricultural land was sold by Ibrahim to Muhammad Ramzan (predecessor-in-interest of respondents Nos.l to 11) and Allah Bakhsh (respondent No.12) 'for ostensible sale price of Rs.40,000 through a registered sale-deed, dated 19-1-1980. Two rival suits were filed to pre-empt this sale, that, is, one by Muhammad Hashim respondent No.13 and the other by Muhammad Ismail (petitioner herein). Muhammad Hashim claimed superior right of pre-emption as being real son of the vendor and valued his suit at Rs.16,721 for the purposes of jurisdiction whereas Muhammad Ismail (petitioner) claimed superior right of pre-emption as being co-sharer in the Khata, fixing jurisdictional value of his suit notionally at Rs.2,500 subject to statement of net profits prepared by the Revenue Officer, respondents resisted the suits, which were consolidated and tried by the learned trial Judge. On pleadings of the parties 12 issues including relief were framed. Of them issue No.1 related to the controversy, whether the suits were intentionally under valued for the purposes of court-fee and jurisdiction while issue No.7 pertained to superior right of pre-emption. The parties led oral as well as documentary evidence in support of their respective claims.

2. As regards the controversy about valuation of suits for the purposes of court-fee and jurisdiction, the learned trial Court rejected the schedule of net profits Exh.P.I relied upon by Muhammad Hashim (respondent No.13) being incorrect, and rightly so, as it was worked out by applying incorrect rates of crops, whereas the schedule of net profits Exh. D.I. relied upon by Muhammad Ismail (petitioner) was accepted as correct which showed the net- profits of the year next before the presentation of plaint as Rs.1,922.88 and fifteen times of which came to Rs.28,843.20.

3. On 17th April 1984,according to the statement of vendees/respondents, the learned trial Court awarded first decree in favour of Muhammad Hashim (plaintiff /respondent No.13) regarding half of suit land on payment of Rs.22,500 and the remaining half of the suit land was left with the vendees and second decree was granted to Muhammad Ismail, rival pre-emptor /petitioner herein for the entire suit land subject to the payment of Rs.44,800 provided Muhammad Hashim (respondent No. 13) failed to pay the pre-emption money by the date fixed by the Court. Feeling aggrieved Muhammad Ismail petitioner took Appeal (No. 203/13 of 1984) to the District Judge before whom the respondents raised a preliminary objection that since the learned trial Court in para. 18 of its judgment determined jurisdictional value as Rs.57,686.40 therefore, the appeal being beyond his pecuniary jurisdiction was not competent before him. Learned District Judge upholding the objection returned the appeal to the petitioner for presentation to this Court vide impugned order, dated 10th December, 1984. Pursuant to this direction, the petitioner presented the, same in this Court which is numbered as R.F.A. No.146 of 1984. Besides this, the petitioner filed the instant Civil Revision (CR No.536 of 1985) challenging the above mentioned order of returning the appeal to him. We propose to dispose of both R . F. A . No.146 of 1984 and Civil Revision No.536 of 1986 by this single judgment.

4. We have heard learned counsel for the parties and also perused the record.

5. Admittedly, the suit land is not assessed to land revenue, therefore, according to section 3 of the Suits Valuation Act, 1887, read with its schedule for the purposes of the court-fee and jurisdiction the suit of the petitioner was required to be valued at fifteen times of net profits arising from the suit land during the year next before the presentation of the plaint. Learned trial Court, as indicated above, found fifteen times of the net profits to be Rs.28,843.20, therefore, jurisdictional value of the suit land being far less than Rs.50,000 the appeal Civil Appeal No.208/13 of 1984 filed by the petitioner before District Judge was competent and the learned District Judge was, not right in returning the same To the petitioner as being beyond his pecuniary jurisdiction. It is true that in para. 18 of judgment the learned trial Court directed Muhammad Hashim (respondent No.13) to make up deficiency in court-fee on Rs.57,686.40 which is absolutely wrong and contrary to the material on record because under issue No.1. It had been specifically held by the learned trial Court that schedule of net profits Exh . D .1 was correct which described net profits as Rs.1,922.88 fifteen times of which comes to Rs.28,843.20.

6. For the above discussion, we accept the Civil Revision, set aside the impugned judgment as being against fact and law. The result is that Civil Appeal No.208/13 of 1984, be deemed to be still pending before District Judge, Leiah, who shall decide the same on merits in accordance with law after hearing both the parties. There shall, however, be no order as to costs. The office shall send the record of R. F. A. No.146 of 1984 to District Judge, Leiah, for compliance. H.B.T. Revision accepted