2000 PLP 2104 (YLR)

This provision of law, in our view, is‑not attracted in the present case for the simple reason that the land in question is assessed to land revenue in accordance with the statements of Patwari and office Qanoongo. Muhammad Akram, the Patwari witness, deposed in the Court that the entire record of village Sahang was unattested. It was further stated by Patwari witness that the suit land in Mera Doem. The witness, as stated in earlier part of this judgment, however, deposed that the land revenue on Mera Doem‑is assessed as three annas and three pies per kanal of village Sahang which is so entered in Ser‑band. Similarly, it was stated by Manzoor Hussain, Office Qanoongo, that Khasra No.2149 is not assessed to land revenue, however, in actual register of Jamabandi in Pert Safkar the land revenue is assessed which pertains to the whole Khata and is fixed as rupees five, eight annas annually. In both the situations, in our view, if the value of the suit for the purpose of jurisdiction is fixed on the basis of land revenue on Mera Doem land, the case is triable by the Sub‑Judge. In the alternative even if the value of the suit is fixed on the basis of whole Khata, wherein the land in question is entered, the suit remains to be triable by the Sub‑Judge.

6. In a case titled Muhammad Iqbal v. Farzand Begum and others 1999 CLC 1108, it was held as follows:‑‑‑ "In our view the provisions applicable will be section 7, clause (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 gardens. ‑‑‑In suits for the possession of land, houses and gardens‑‑ according to the value of the subject -matter and such due shall be deemed to be‑‑‑ whether 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 the 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 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." 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 the Court Fees Act and valuation of the suit is determined under section 8 of the Suits Valuation Act: Another observation also appears in the case titled Ghulam Hussain Shah v. Hidayaullah Khan PLD. 1981 SC (AJ&K) 55), which is reproduced from page 59 and is to 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..............

7. It has been strenuously argued by Raja Muhammad Siddique, the learned counsel for respondent No.l, that even if the land revenue is assessed on the suit land, the same is not paid as the land revenue has been exempted by the Government, as such it cannot be said by any stretch of imagination that on the suit land the land revenue was paid. In our view the contention raised by the learned counsel for the respondent merits no consideration for the simple reason that actual payment of land revenue is not mandatory portion of the procedure laid down for assessing suit valuation. It is the land revenue which is payable to the Government and not its actual payment which is key to the procedure for valuation. This is clear from the fact that in the subsequent provision the word "payable" and not "being paid" has been used.

8. Another reason for, not accepting the contention of the learned counsel for respondent is that the defendant‑respondent cannot blow both hot and cold in the one and same breath. On the one hand the case of defendant‑respondent is that the plaintiff's suit was triable by the District Judge in view of its pecuniary jurisdiction in accordance with the market value of the suit land and on the other hand when the defendant respondent's learned counsel was confronted with the situation that in that case his appeal would have been competent before the High Court and not before the District Judge. The learned counsel, facing the aforesaid predicament, replied that he lodged the appeal against the judgment and decree of the Sub‑Judge before the Court of District Judge for the reason that the valuation of the suit was fixed by the plaintiff. Had he directly gone to the High Court by way of appeal against the judgment and decree of the Trial Court, his appeal would have been returned by the High Court to him for presenting the same before a proper Court. In our estimation the aforesaid stand of the learned counsel for respondent is contradictory in nature. If according to him the law stands settled that the pecuniary jurisdiction of the suit in question was such that the suit was triable by the District Judge; then the only course open for defendant respondent was to lodge a direct appeal in the High Court. In that situation we are aware that the defendant's appeal was time‑barred as he has been seeking his remedy before the District Judge. This point of vital importance was also not attended to by the High Court.

9. We have already mentioned somewhere that in the written statement filed by defendant‑respondent before the Trial Court, it was unequivocally stated by the defendant that, if the plaintiff wanted to get a decree for pre‑emption in his favour, he may pay the total consideration amount of Rs. 1,30,

000. Without entering into the question as to whether after payment of Rs. 1,30,000 by the pre‑emptor to the defendant‑respondent, he was estopped from lodging the appeal or not, in fact this averment on the part of defendant‑respondent impliedly meant that he accepted prior right of the plaintiff‑appellant. It had been concurrently held by the Trial Court as well as the First Appellate Court that plaintiff pre -emptor has a preferential right over the land as compared to vendee which has not been rebutted by the defendant‑respondent. The High Court has also not set aside the finding of Trial Court as well as the District Judge on that score.

10. In the light of what has been stated above, by accepting the appeal, we set aside the impugned judgment and decree passed by the High Court and uphold the judgments and decrees passed by the Trial Court and the First Appellate Court. In the circumstances of the case, we pass no order as to costs so far as this Court is concerned. M.B.A./39/S.C(AJ&K) Appeal accepted,