2000 PLP 1864 (MLD)

Mirza Manzoor Ahmad for Respondents. Date of hearing: 8th March, 2000. The respondents purchased the suit land vide Mutation No.475 attested on 5‑4‑1974 for a consideration of Rs.90,

000. The appellants filed a suit for possession of the said land by pre‑emption. They alleged that they are owners in the estate while the respondents are strangers. According to them the land was sold for a sum of Rs.20,

000. This suit was filed on 3‑4‑1975. The respondents put in appearance and filed a written statement. They raised several preliminary objections. One such objection was that the value of the suit for the purposes of court‑fee and jurisdiction has not been correctly fixed. On merits it was asserted that the land was in fact purchased for Rs.90,000 and that they have also effected improvements on the suit land. In reply to para. 3 of the plaint it was alleged that the respondents have improved their status before institution of the suit by means of registered deed, dated 26‑9‑1974 and Mutation No.502 attested on 3‑10‑1974 and as such the appellants did not have a superior right of pre‑emption as against them. The appellants filed a replication. In reply to para. 3 it was stated that the registered deed and the mutation on which the respondents are relying are void being violative of the Land Reforms Regulation. Issues in the suit were framed and evidence of the parties was recorded. The learned trial Court held that the appellants had a superior right of pre‑emption as against the respondents; that the market value of the suit land was Rs.60,000 the claim of the respondents in respect of improvements was rejected. It was also found that the suit was correctly valued for the purposes of the court‑fee and jurisdiction. In view of the said findings, the suit of the appellants was decreed on payment of Rs.60,000 vide judgment and decree, dated 10‑1‑1979. The respondents filed a first appeal which was heard by a learned Additional District Judge, Muzaffargarh. The learned Additional District Judge found that the gift evidenced by document Exh.P.9 in favour of respondent No. l is void being against the provisions of M.L.R.

115. He further observed that although the gift in favour of respondent No.2 evidenced by mutation Exh.D.2 is valid yet since the gift in favour of respondent No. l is void and he being a stranger, respondent No.2 has lost his right also by joining him in the sale. He fixed the market value of the suit as Rs.87,

400. However, he found that the suit had not been valued properly for the purposes of court‑fee and jurisdiction and since proper court‑fee had not been paid on the plaint within the limitation period prescribed in the suit the suit had become barred by time. On the basis of this latter finding he allowed the appeal vide judgment and decree, dated 6‑4‑1980 and dismissed the suit of the appellants.

2. Mr. Muhammad, Khalid Alvi, learned counsel for the appellants contends that the judgment of the learned Additional District Judge is violative of law laid down in the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289). According to him even if the learned Additional District Judge had come to the conclusion, that the court‑fee had not been properly assessed, he should have given an opportunity to the appellants to make up the deficiency under Order VII, Rule 11, C.P.C. Mirza Manzoor Ahmad, learned counsel for the respondents does not dispute the said proposition of law. However, says that he has a right to support the judgment and decree in his favour on the points decided against him by the learned lower Courts. Mr. Muhammad Khalid Alvi, Advocate relying on the case of Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others (1996 SCMR 1862) and the case of Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53) argues that without filing cross objections the respondents cannot be allowed to attack the findings regarding the superior right of pre‑emption. Mirza Manzoor Ahmad Advocate meets the arguments with reference to the case of Shahro and others v. Mst. Fatima and others (PLD 1998 SC 1512) where the Supreme Court of Pakistan while upholding the judgment of the High Court of Sindh in the case of Pakistan International Airlines Corporation v. Messrs Khalid Brothers (PLD 1992 Kar. 78), held that a respondent who has not filed en appeal or cross‑objections can still support the decree in his favour by demonstrating that the findings recorded against him on sonic of the issues are wrong. Respectfully following the later view of the Supreme Court of Pakistan I have allowed Mirza Manzoor Ahmad, Advocate to support the decree of the learned Additional District Judge by attacking the findings against him on issues relating to the superior right of pre‑emption.

3. As stated by me above, the learned Additional District Judge as well as the learned Civil Judge have held the gift to be otherwise complete and valid. The learned lower Courts have, however, found that the gift in favour of respondent No. l is violative of the provisions of M. L. R. 115 and as such is void. I am afraid the said findings of the learned lower Courts and the ultimate conclusions arrived at by them qua the said gift deed evidenced by document Exh.P.9 are bad in law. In fact, the same are without lawful authority. For the said findings I rely on the case of Mst. Aisha Bibi v. Nazir Ahmad and 10 others (1994 SCMR 1935) wherein the Supreme Court has held that no civil or even revenue Court has the jurisdiction to declare a transaction to be valid on the ground that it is violative of M.L.R.

115. The Apex Court has held that this jurisdiction vests only in the authorities appointed under M.L.R. 15 or the Land Reforms Act, 1977. Confronted with the said legal position Mr. Muhammad Khalid Alvi, Advocate sought to argue that the gift deed Exh.P.9 does not disclose as to whether it was a gift of agricultural land so as to clothe respondent No. l with the status of owner in the estate. I am afraid that no foundations for the said arguments have been laid down either in pleadings or in the course of evidence. I have already referred to the replication filed by the appellants where in response to the averments of the respondents that they have improved their status and brought themselves at par with the appellants before institution of the suit, the only plea raised was that the transactions in their favour are violative of M.L.R.

115. In the absence of any plea or evidence I am not inclined to entertain the said arguments of the learned counsel for the appellants.

4. As a result of the above discussion I reverse the findings of the learned Additional District Judge on Issue No.2 whereby he has held the suit of the appellants to be barred by time and I also reverse the findings of the learned Additional District Judge as also of the learned Civil Judge on Issue No. l and finding that since the respondents had improved their status and brought themselves at par with the appellants before institution of the suit which is permissible under section 21‑A of the Punjab Pre‑emption Act, 1913, I hold that the appellants had no superior right of pre‑emption as against the respondents.

5. As a result of the above discussion I dismiss this R.S.A. and uphold the ultimate decree, dated 6‑4‑1980 of the learned Additional District Judge dismissing the suit of the appellants but for the reasons and on the grounds stated above. No orders as to costs. H.B.T./228/L Appeal dismissed.