1999 PLP 1383 (CLC)

(1) Whether the plaintiff and defendants Nos.5 to 7 are the owners of the land mentioned in para. No. l through a valid exchange? (2) Whether the Awi in dispute is on the site belonging to the plaintiff? O. P. P. (3) Whether defendants Nos. l to 4 have encroached upon the land mentioned in para. No. l of the plaint, if so when and with what effect? O. P. P. (4) Whether the defendants Nos. l to 4 were in permissive possession of 15 Marlas of land under the Awi on the basis of an agreement having been arrived at between the parties. If so, what were the terms of the agreement and with what effect? O.P.D. . (5) Whether defendants Nos. l to 4 have committed breach of contract by constructing house on the said site. If so, with what effect? O.P.D. (6) Whether the defendants Nos. l to 4 have prescribed title to the site in dispute by adverse possession for 12 years or more? O.P.D. v. (7) Whether the suit is incorrectly valued for the purposes of court‑fee and jurisdiction. If so, what is the correct valuation? O.P.D. (8) Relief. Both the parties were allowed to adduce evidence in support of their respective stand and finally the trial Court dismissed the suit vide judgment and decree, dated 18‑12‑1975. The plaintiff/petitioner felt aggrieved of the said judgment and decree and agitated the matter in the Appellate Court. The learned Additional District Judge, Gujrat vide judgment and decree, dated 22‑10‑1984 dismissed the appeal simply on the ground that plaintiff/petitioner had failed to affix proper court‑fee as per valuation determined by the trial Court. The plaintiff/petitioner has felt aggrieved of the said judgment and decree and filed the instant civil revision.

3. The defendants/respondents were summoned. They have been served but none of them is present, as such they have been proceeded ex parse.

4. Arguments have been heard and record perused.

5. It is contended by the learned counsel for the plaintiff/petitioner that he has been non‑suited by the appellate Court simply on the ground that he had failed to affix court‑fee .on the valuation determined by the trial Court. He submits that this finding of the lower Court is not based on correct appraisal of facts. He canvasses that a specific Issue No.7 was framed on that point, but the trial Court did not give its findings as to what was the correct valuation of the suit for the purpose of court‑fee and jurisdiction, while deciding Issue No.7 and consequently, failed to determine the correct valuation, that as such he affixed the valuation on memorandum of appeal on the basis of Ausat Punj Sala, prepared by the revenue department. He further contends that even if it is assumed that suit as well as appeal had not been properly valued for the purpose of court‑fee, the Courts could not dismiss the same without adjudicating upon the same and directing the plaintiff/petitioner to set up the deficiency of court?fee within a specified time and relied upon Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC

289. He next argued that he had simply requested for possession of open space and had not demanded the possession of superstructure raised on the encroached area and as such had fixed the valuation of suit for purpose of court‑fee as per Ausat Punj Sala prepared by the revenue department.

6. Admittedly Issue No.7 relates to the determination of the valuation of suit for the purpose of court‑fee and jurisdiction and onus of the same has been placed on defendants/respondents Nos. 1 to

4. A perusal of findings on Issue No.7 reveal that trial Court has not ascertained the correct valuation of the suit for the said purposes. Thus, the plaintiff/petitioner was justified in fixing the court‑fee as per valuation determined as per Ausat Bay Punj Sala. Had the trial Court ascertained the valuation of suit for purpose of court‑fee and jurisdiction, then it could be said that plaintiff/petitioner had failed to fix proper court‑fee. But this is not the case of other party. The findings of the learned Additional District Judge that plaintiff/appellant has not affixed the court‑fee as ascertained by the trial Court is not borne out from the record. Accordingly revision petition is accepted and the matter is remanded to the appellate Court with the direction to determine the deficiency of court‑fee and then to allow sufficient time to the plaintiff/petitioner to make up the same, failing which the Court shall proceed in accordance with law. Record shall be remitted to the learned District Judge, Gujrat immediately who is directed either to dispose the appeal himself or to entrust the same to some other learned Additional District Judge for disposal in accordance with law. Q.M.H./M.A.K./S‑305/L???????????????????????????????????????????? Revision accepted.