SADAR DIN Versus ELAHI BAKHSH

Sadar Din, appellant herein, filed a suit for possession through pre-emption against Elahi Bakhsh and Muhammad Ramzan, respondents, who were vendees of land measuring 188 kanals and 15 marlas situate in Mauza Jangal Faizpur, Tehsil and District Multan. The case of the appellant was that the respondents had purchased the land in dispute from Mst. Isman Bibi .and two others for a sum of Rs. 25,800 and that the amount of Rs. 98,700 mentioned as the sale price of the land in dispute was fictitious. The learned Additional Administrative Civil Judge, Multan, decreed the suit of the appellant on payment of Rs. 98,700 on or before the 10th of February '1971 failing which his suit was ordered to be dismissed with costs. According ,to the finding of the learned trial Judge the sale price of Rs. 98,700 of the land in dispute was fixed in good faith. This is the Regular First Appeal by the plaintiff.

2. Learned counsel for the respondents has raised a preliminary abjection that the appeal in the High Court is not competent and the value of the suit for the purposes of jurisdiction being Rs. 16,858.60 it should have 'been filed before the District Judge. On behalf of the appellant it is contended that the decree has been passed by the trial Court on payment of an amount which is more than Rs. 25,000 and, therefor, the appeal is com petent in the High Court.

3. In order to appreciate the contentions of the parties it is necessary to refer to certain provisions of law.

Pre-emption suit is one for possession of land: The value of the suit for possession through pre-emption for the purposes of court-fee is determined under section 7, paragraph (vi) of the Court Fees Act (VII. of 1870) and it is the same as it is for suits covered by paragraph (v) of the same section of that Act for possession of land. The value of the suit for the . purpose of court-fee was fixed under clause (c) of paragraph (v) of section 7 on fifteen times the net profits having arisen from the land during the year next before the date of presenting the plaint. The court-fee in such a suit is not to be computed or calculated on the basis of its market value.

4. The value of the suit for the purposes of jurisdiction is determined under the Suits Valuation Act, 1887. Section 3 deals with pre-emption suits.. It reads-:

"3. (1) The Provincial Government may make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act. 1870, section 7, paragraphs (v) and (vi), and paragraph (x), clause (d).

(2) The rules may determine the value of any class of land, or of any interest in land in the whole or any part of a local area, and may prescribe different values for different places within the same local area."

Rules under this provision of law were framed by the Government of the Punjab and are contained in Chapter 3-D, Volume I of the High Court Rules and Orders. According to the Rules the value of the suit for the purposes of jurisdiction is calculated on 15 times of the net profits. The parties are agreed that the value was correctly fixed at Rs. 16,858.60.

5. The value of appeal for purposes of jurisdiction is determined under the West Pakistan Civil Courts Ordinance, 1962 (Ordinance II of 1962) for determining the forum of appeal. Its relevant portion reads:

"18. (1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie-

(a) to the High Court if the value of the original suit in which the decree or order was made exceeds twenty-five thousand rupees ; and

(b) to the District Judge in any other case."

The important thing to be noted is "value of the original suit" occurring in section 18(1)(a). Value is defined in clause (h) of section 2 of the Ordinance as : " `Value' used with reference to a suit means the amount or value of the subject-matter of the suit". It is manifest that the forum of appeal is to be decided according to the value of the suit. It means that irrespective of what may be the amount for which decree is passed, the appeal will lie in the Court according to the value of the suit. In most of the suits, the value for the purposes of court-fee and jurisdiction is determined on the basis of the -claim in the suit or on the market value of the property. In certain cases like the suits for possession or pre-emption the value for the purposes of court-fee is fixed notionally on the basis of the Land Revenue or the net profits, and value of such suit for the purposes of jurisdiction is. notionally so fixed under the rules framed under section 3 of the Suits Valuation Act. The value of the suit for the purposes of jurisdiction was, rightly fixed at Rs. 16,848. The same had to be the value of the appeal irrespective of the claim in appeal.

6. I may now examine the contentions of the learned counsel for the appellant that a Court is incompetent to pass a decree for payment of an amount beyond the pecuniary limits of its jurisdiction and the value fixed by the plaintiff should be considered to be tentative notwithstanding that it ,vas fixed according to the :rules. It is further argued that a decree in a suit for pre-emption is not merely and simply a decree for possession of property but it is. a decree for possession on payment of purchase money and, therefore, -the ,amount to be paid under the decree -should be within the pecuniary limits of the Court's jurisdiction. He relied on Kalu Ram v. Nanwant Ram A I R 1934 Lah. 488 and Ganga Ram v. Hakim Rai A I R 1934 Lah. 545 These judgments are in account suits. They are not relevant in the present case which is a suit for possession by way of pre-emption of agricultural; land. The account suits are valued .on different premises and the same cannot be applied to pre-emption suits. In such cases plaintiff tentatively fixes the value of the suit for purposes of court-fee under section 7 paragraph (iv) of the Court ;Fees Act. However, .if the amount decreed in such a suit is more than the approximate .value fixed in the plaint the decree cannot be executed as provided in section 1I1 of the Court Fees Act until the consequent difference in court-fee is paid. Therefore, in account suits the value fixed in the plaint is the value of the original suit if the amount decree is not in excess of that. If, however, the amount exceeds then that amount becomes the value of the suit. The forum of the appeal is to be determined on such value.

5. Learned counsel also relied on Muhammad Afzal Khan v. Nand Lal 16 P R 1908 where it was held that a Court cannot grant a pre-emption decree for possession on payment of a sum of money which exceeds the pecuniary limits of its jurisdiction, and that in such a case the Court should return the plaint for presentation to a competent Court. It was held in that case that ;the value of the pre-emption suit fixed in accordance with the provisions of the Suits Valuation Act is a tentative value as in suits of account and when the Court .comes to the conclusion that the value of the property exceeds its pecuniary jurisdiction, then it ceases to have jurisdiction to pass a decree. It was further held that direction for deposit of money in a pre-emption decree is a part of the decree, and when the amount mentioned in that direction exceeds the Court's pecuniary jurisdiction then it has no power to pass a decree. I am unable to accept that the value of a pre-emption suit is tentatively fixed. There is no provision of law to that effect. In suit for account there is a specific provision to that effect in Order VII, rule 2, C. P. C. Section 11 of the Court Fees Act also does not apply to a pre-emption suit. The Legislature when it enacted the Court Fees Act and the Suit Valuation Act was conscious of the special features of pre-emption. In a pre-emption suit no decree for possession can be passed unless there is a direction for payment by the pre-emptor of the market value or the sale price as the case may be. The Legislature in a case where the suit -for pre-emption is about a house or garden fixed the value of the suit on the basis of market value or the sale price. It could fix the value of pre-emption suit for the agricultural land also on the market value or the sale price. It, however, did not do so and by ignoring the market value or the price for the purposes of court-fee and jurisdiction in respect of suit relating to agricultural land, provided for the fixation of notional value, ,under the Court Fees Act and also under section 3 of the Suits Valuation Act.

6. The view taken that the direction for deposit of money in pre -emption decree is part of a decree is also not tenable. Under Order XX, rule 14, C. P. C. a decree for possession on the basis of pre-emption has to contain a direction that the vendee could deliver the possession of the pro perty to the pre-emptor on condition that he deposits the amounts within a certain period. It is further stated in the decree that if the plaintiff does not pay the amount within the time so specified the suit shall stand dismissed.! The suit for pre-emption is, therefore a suit for possession and not for the payment of money.

7. The forum of the appeal is determined under section 18 of the West Pakistan Civil Courts Ordinance, 1962, and it does not lay anywhere that the form of appeal is to be determined on the basis of the sale price or the market', value of the land in dispute but only says that it is to be determined on the!, basis of the value of the suit. The value of the suit in such a case being the one which is notionally fixed the same determines the forum. The precise question', came up for consideration in Iftikhar Ali and others v. Thakar Singh and an other 83 P R 1912 and it was held that the forum of appeal cannot be affected by the amount which the Court directs the pre-emptor to pay. The jurisdictional value of a suit relating to pre-emption in respect of agricultural land throughout the litigation remains the same. The same view was taken in Teja Singh v. Sundar Sirgh A I R 1914 Lah. 432. In Jagdesh Ram v. Mt. Chinto and others A I R 1936 Lah. 133 it was held that in a pre-emption suit relating to land of which the value for purposes of jurisdiction under the Suits Valuation Act is less than Rs. 5,000, an appeal lies to District Judge and not to the High Court.

8. In the circumstances, I will hold that the appeal was not competent.. It may be returned for presentation to the competent Court. There shall be no order as to costs.

S. A. H. Appeal held not competent.