P L D 1978 Lahore 1252 (PLP)

The plaintiff-petitioner filed a suit for challenging the sale of the property in dispute by defendant No. 4 in favour of defendants Nos. 1 and 2 as collusive, illegal, void ab initio and ineffective on her own right of ownership of the said property. The suit is based upon the alleged title of the plaintiff said to have been obtained by her by a gift from defendant No. 4 on 20th of June, 1969. .

2. A question about the correct valuation for the purpose of court-fee was raised by defendants Nos. 1 and 2, on which an issue to that effect was framed by the learned trial Court. The Court, however, refused to treat the issue as preliminary on which a revision petition was filed by the vendee respondents before the District Judge. The Revision Petition was allowed and the above issue was directed to be treated as a preliminary issue. .

3. The learned trial Court took up this issue . first and held that the suit was governed for the purpose of valuation, by the provisions of newly added subsection (4)(a) of section 7 of the Court Fees Act which reads as follows : "In suits for a declaratory decree with or without consequential relief as to right in or title in immovable property based on alleged sale, gift, exchange of mortgage-according to the value of the property,

4. In view of this the learned trial Court directed the plaintiff to value the suit at a sum of Rs. 1,75,000 for which it was purchased by respondents Nos. 1 and 2, the same being treated as the market value of the property in dispute.

5. It is now contended that firstly the revisional Court had no jurisdiction to entertain the revision on the question whether certain issue should be treated as preliminary or not ; and secondly since the petitioner only seeks to challenge the sale in favour of the respondent and does not require a declaration as to her own title, the above provision is, not attracted. I do not agree with either of these contentions. It is admitted that a writ petition was filed against the revisional order in this Court which was dismissed. This point cannot, therefore, be urged by way of this revision. Moreover a revisional order of the District Judge attains finality and cannot be challenged by a further revision before the High Court. The first point is, therefore, without merit.

6. It is correct that in the prayer clause there is no reference to . the gift, but all the same the petitioner's suit is based on her own title which she bases on an alleged gift from defendant No. 4 to her.

7. The above provision of law is applicable to all suits for a declaratory decree with or without consequential relief involving one's own right or title in immovable property based on inter alia an alleged gift. In order to determine whether a declaratory suit involves such right or title based upon gift the plaint as a whole should be seen and not its relief clause only. g A plaintiff cannot escape the liability to pay the court-fee in accordance with this subsection by omitting the basis of his claim from the relief, clause.

8. This being a suit for a declaratory decree which involves plaintiff's own title which is based on an alleged gift, there is no escape from the language of the newly-added subsection (4), (a) of section

7. The order of the learned Court below is unexceptionable.

9. The petition is without merit and is dismissed in limine with costs. S. Q.??? Petition dismissed.