MUNAWAR HUSSAIN and 2 others vs SULTAN AHMAD

' SARDAR MUHAMMAD RAZA KHAN, J.--- Munawar Hussain etc., the vendees in a pre-emption suit have filed this direct appeal against the judgment, dated 10-1-2005 of a learned Single Judge of Lahore High Court, Multan Bench whereby the partial decree granted against the appellant- vendees by the District Judge was modified but only to the extent of measurement of land.

2. Ghulam Hussain, vendor had sold the land in dispute in favor of Munawar Hussain, etc., the appellants vide sale-deed dated 16-12-1978. On the ground that he was collateral of the vendor and also a co-sharer in Khata, one Sultan Ahmed, the respondent filed a suit for pre-emption. The learned Senior Civil Judge, Vehari vide judgment dated 20-51985 dismissed the suit on the ground that the vendees were tenants in the suit-land and hence the sale could not be pre-empted.

3. After appeal, the learned first Appellate Court vide judgment, dated 5-2-1986 held that the tenants were entitled to protect their purchase only to the extent of tenancy in the purchased land.

Accordingly, a partial decree was granted in favor of the pre-emptor which was further modified to the extent of measurement of land by the learned High Court and hence this appeal.

4. Learned counsel for the vendee-appellants has at the very outset challenged the pecuniary as well as inherent jurisdiction of the District Judge, rendering his judgment to be void ab inito and so the judgment of the learned High Court that followed. He added that at the time of filing appeal before the District Judge concerned on 18-6-1982, the pecuniary jurisdiction of District Judge was Rs,50,000 but he had entertained an appeal the valuation whereof was Rs,1,62,979. That in the circumstances, the appeal was to lie before the High Court and the District Judge lacked inherent as well as pecuniary jurisdiction.

5. We have to see as to what has happened factually. In fact, if one refers to the plaint, the pre- emptor himself, under section 3 of the Suit Valuation Act, had valued his suit for the purposes of jurisdiction at Rs,1,62,979. This valuation was fixed at thirty times the Land Revenue assessed to the land in dispute, as specifically mentioned by the plaintiff. What did he do while lodging the appeal before the District Judge that he changed such valuation to Rs,50,000 under the same principle in order only to give jurisdiction to the District Judge and most probably to avoid going to the High Court.

6. Coming to the legal aspect of the case, it is a settled proposition of law that valuation of a suit for pre-emption pertaining to agricultural land is to be fixed at thirty times the Land Revenue assessed to the land in dispute. This was exactly done by the plaintiff and such amount was calculated as Rs,1, 62,979. Under section 18 of the Civil Courts Ordinance, pecuniary jurisdiction of the District Judge is always derived from the valuation in the plaint and hence at the relevant time the learned District Judge had no pecuniary jurisdiction beyond Rs,50,000, whereas, in the instant case, it was Rs,1,62,979. Decidedly, he had no jurisdiction, to be assumed on the basis of memorandum of appeal. He should rather have consulted the plaint.

7. The learned counsel for the respondent while placing reliance upon Noor Muhammad v. Mst.

Kaneez Fatima PLD 1980 Lah. 471 replied that the District Judge has rightly assumed jurisdiction after seeing the valuation determined at thirty times of Land Revenue, This may be correct in principle but such thirty times of the Land Revenue in the present case as given by the plaintiff himself was not Rs,50,000 but Rs,1,62,979. The plaintiff was estopped to change such valuation in order merely to give jurisdiction to the District Judge and the District Judge in turn ought to have consulted the plaint and not the memorandum of appeal. This is what section 18 of Civil Court Ordinance, 1962 demand of him that where suit concerning land assessed to Land Revenue was involved, the determining factor was the value of the original suit.

8. Learned counsel for the respondent further relied upon Bashir v. Wazir Ali 1987 SCMR 978 but the point involved therein was altogether different. This Court, with reference to section 18 of West Pakistan Civil Courts (Amendment) Ordinance, 1978 and Punjab Civil Courts Ordinance (Amendment) (Act V) of 1986 had only held that the aforesaid amendments had though enhanced the pecuniary jurisdiction of the appellate forum yet had not affected the right of appeal as such.

Rather, it was held that the valuation of the suit therein having acceded Rs,50,000, the appeal was rightly filed before the High Court. In the instant case the dispute is as to which should have been the forum of appeal in the light of the valuation determined and fixed in the plaint by the plaintiff himself.

9. Further reliance was placed upon Qazi Shamus-ur-Rehman's case 2004 SCMR 1798 (b) and (c) in support of the argument that this irregularity should be overlooked because the objection was not taken before the first Appellate Court. A perusal of the judgment aforesaid would indicate that in there the question was of mere procedural irregularity and not lack of pecuniary or vested jurisdiction. In the case under reference the trial Court had the jurisdiction to adjudicate upon the subject-matter and objection was only to the procedure adopted. This Court, therefore, held that if the inherent jurisdiction was not lacking, no procedural irregularity could be taken into account unless the objection was raised before the trial Court, the Appellate Court and the High Court. The fact is that in that case no objection was taken before any of the three Courts but the High Court suo motu entertained the point of procedural irregularity. This was not approved by this Court. So far as, the present case is concerned, it involves the vested, inherent and pecuniary jurisdiction of a forum.

10. For the point in question, this Court has given a clear distinction in case of Muhammad Hussain v. Muhammad Shafi 2004 SCMR 1947. We have already held that when a Court suffers from want of inherent jurisdiction, no amount of consent or acquiescence in the proceedings can invest such Court with such jurisdiction. No question of waiver or estoppel is attracted in such circumstances.

11. The crux of all such discussion is that the inherent or pecuniary jurisdiction cannot be conferred on a forum even with the consent or acquiescence of a party. The non-raising of any objection in the circumstances is totally immaterial, whereas, the fact is that vendee had raised this objection before the High Court and it was on this point that the appeal before the High Court was admitted to full hearing.

12. For all that is discussed above, the appeal is accepted, the judgment, dated 5-2-1986 of the learned District Judge and that dated 10-1-2005 of the learned High Court are set aside and that of the trial Court dated 20-5-1985 is restored.