1989 PLP 3753 (MLD)

‑‑‑Ss 100 & 105(2)‑‑Punjab Pre‑emption Act (I of 1913), S.15‑‑Superior right of pre‑emption‑‑Challenge to‑‑Suits for pre‑emption filed by rival pre‑emptors on ground of their superior rights of pre‑emption were decreed by Trial Court in equal shares‑‑Appellate Court below upholding findings of Trial Court in respect of superior right of pre‑emption, however remanded case only to determine valuation of suit for court‑fee and quantum of compensation on account of alleged improvement‑‑Remand order was not challenged by vendees/appellants any further‑‑Vendees, held, were legally debarred from assailing correctness of findings regarding superior right of pre‑emptors as scope of appeal was limited only to determination of correct value of suit for purpose of court‑fee and quantum of compensation. Mohammad Abdullah Bajwa for Petitioners. Syed Najam‑ul‑Hassan Kazmi for Respondent. Date of hearing: 27th November, 1988. This judgment shall also dispose of R.SA. No.280 of 1984.

2. The only law point requiring decision in this case is whether after recording finding that the value of the suit for purpose of court‑fee was Rs.1,34,195.00 the learned lower appellate Court had or had no jurisdiction to decree the suit for possession of land through pre‑emption filed by the respondents in both the appeals as rival pre‑emptors because the pecuniary jurisdiction of the lower appellate Court at the relevant time i.e. 24‑10‑1984 when the impugned judgment was passed extended only to a suit of the value of Rs.50,000.00.

3. I have heard the learned counsel for the parties. Muhammad Maalak etc. in their plaint fixed the value of the suit for the purpose of court‑fee and jurisdiction at Rs.7,500.00 which was stated to be 15 times the net profits accrued in the preceding year whereas Muhammad Hussain the rival pre‑emptor affixed the value of his suit for purpose of court‑fee and jurisdiction at Rs.1,300.00 which was stated by him to be 15 times the net profits accrued in the preceding year. In the written‑statement the appellants appear to have disputed the correctness of quantum of court‑fee only affixed on the plaint which fact further finds support from the fact that the learned trial Court framed issue No.9 regarding valuation of the suit for purpose of court‑fee alone as under:‑‑ Issue No 9.‑‑Whether the suits are properly valued for the purpose of court‑fee.? O.P.P. The appellants did not get the said issue corrected so as to include within its scope the question of valuation of the suits for purpose of jurisdiction also therefore, the objection was limited to the correctness of valuation of the suit for purpose of court fee alone. The rule is firmly settled that in a suit for pre‑emption it is open for the plaintiff to put different valuation of the suit for jurisdiction from that of court‑fee. In this view of the matter it shall be taken as if the valuation of the suit for purpose of jurisdiction was fixed in both the suits at Rs.7500.00 and 1300.00 respectively which as mentioned above was not challenged, and the correctness of the said affixation of valuation was challenged so far as it related to value of the suit for payment of court‑fee alone. According to well settled law the forum of appeal is to be determined on the basis of valuation of the suit for purpose of jurisdiction and not with reference to the 1 value of the suit for purpose of court‑fee as such even if the learned lower appellate Court held that the value of the suit for purpose of court‑fee was Rs.1,34,195.00 on which court‑fee was to be paid it did not affect his jurisdiction to hear the appellants because the value of the suit for purpose of jurisdiction shall remain the same as fixed by the plaintiffs i.e.Rs.7500.00 and Rs.1300.00 respectively. It is clear from the impugned judgment of the learned lower appellate Court that its said finding is only limited to the valuation of. the suit for purpose of court‑fee.

4. Learned counsel for the appellants further contended that one pre emptor was claiming right of pre‑emption on the basis of collateralship whereas the other on the basis of joint khatadar, therefore, the suit could not have been decreed in favour of both of them in equal shares because the collateral having superior right of preemption out of the turn could get the decree for the entire land and the other suit of khatadar was liable to be dismissed. It is difficult to accept this argument as the appellants cannot challenge the decree in favour of other pre‑emptor i.e. khatadar as according to appellants in any case a decree could be passed against them regarding entire land in favour of collateral alone. In view of this the appellants are nothing to gain in that case also. It was for the pre‑emptor who was claiming collatership to have agitated against the decree passed in favour of rival pre‑emptor and the appellants have no locus standi to raise such an objection. So far as the appellants are concerned both the rival pre emptors independently have superior right of pre‑emption qua him.

5. Learned counsel for the appellants then attempted to assail the findings of the Courts below regarding existence of superior right of pre‑emption in favour of the pre‑emptors. In the facts and circumstances of this case they are not entitled to assail these findings in the present appeal. Learned counsel for the appellants admitted that the suit was initially decreed by the learned trial Court on 4‑3‑1981 in favour of both pre‑emptors in equal shares after holding that they had superior right of preemption. An appeal was filed against the said judgment and decree before the learned lower appellate Court in which the said findings were upheld and the suit was remanded only to determine the valuation of the suit for court‑fee and the quantum of compensation on account of improvements. This remand order was not challenged by the appellants any further, therefore under section 105(2) C.P.C. the appellants are legally debarred from assailing the correctness of findings regarding superior right of preemption of the pre‑emptors and the scope of this appeal is limited only to the determination of question whether the suit was correctly valued for the purpose of court‑fee. The correctness of the valuation of the suit determined by the learned lower appellate Court for the purpose of court‑fee through the impugned judgment has not been questioned by the learned counsel for the appellants.

6. For the foregoing reasons, the impugned judgment and decree of the learned lower appellate Court does not suffer from any illegality calling for interference in second appeal under section 100 C. P. C. Both the appeals fail. The parties are left to bear their own costs. , H.B.T./K‑198/L Appeal dismissed.