MUHAMMAD RAFIQUE BUTT Versus AMANAT ALI

CHAUDHARY MUHAMMAD TAJ, J .‑‑‑ This appeal by leave, is directed against the judgment and decree passed by the High Court on 21‑6‑2003 whereby the judgment and decree of the District Judge, Bhimber was set aside by accepting the appeal.

2. The facts are that the suit‑land measuring 19 Marlas and 3 Sarsais comprising Survey No.974/1, situate in Village Thathi Jandala, Tehsil Samahni, District Bhimber was transferred in favour of real respondents through a sale‑deed executed on 17‑8‑1998. The pre‑emptor appellant filed a suit on the basis of right ‑of prior purchase in the Court of Civil Judge, Samahni. The ‑suit after conclusion was decreed against a consideration of Rs.4,00,000. The appellant challenged the order to the extent of consideration amount through an appeal filed before the District Judge, Bhimber which was accepted and the consideration amount was determined as Rs.2,10,000. The order passed by the District Judge was challenged through an appeal before the High Court. The High Court accepted the appeal and set aside the order of the District Judge and restored the judgment and decree passed by the trial Court. This appeal challenges the aforesaid order.

3. Raja Muhammad Siddique Khan, the learned counsel for the appellant raised following points in support of the appeal:‑‑

(i) That the judgment and decree passed by the High Court is illegal, without jurisdiction and against the facts on record.

(ii) that the value of the suit for the 'purposes of jurisdiction and court‑fee was fixed as RS.600 which was strictly determined according to law. The defendant‑respondents did not raise any objection in this regard either in the pleadings or during arguments in the trial Court and the District Judge. The point was raised first time before the High Court which could not be made at that stage of the case. Even otherwise, the observations of the High Court were against the law settled by apex Court; and

(iii) that the judgment and decree passed by the High Court is contradictory as the learned Judge in one hand held that the trial Court in view of the value of the suit as Rs.4,00,000 had no jurisdiction to try the same and on the other hand held that the judgment and decree of the trial Court shall stand restored. It was also argued that the order is bad in law as no date was fixed for deposit of consideration amount. The learned counsel referred to the following authorities in support of his assertions:‑‑

(1) Muhammad Suleman and another v. Javed Iqbal and others PLD 1985, SC (AJ&K) 1,

(2) Ghulam Rasool v. Muhammad Khan and another 2000 YLR 2104,

(3) Muhammad Hussain v. Muhammad Afsar and 5 others 2001 YLR 3280.

4. Ch. Ali Muhammad, Advocate, who appeared on behalf of the defendant‑respondents, opposed the contentions of the learned counsel for the appellant on the following grounds:‑‑

(i) That the value of the suit for the purposes of jurisdiction and court‑fee was Rs.4,00,000.

The objection was taken in the written statement and also during the arguments before the District Judge, therefore, the learned Single Judge in the High Court arrived at a correct conclusion on the basis of law;

(ii) that the appeal before Court of the. District Judge by the appellant herein related purely to the consideration amount which had the jurisdiction to hear the appeals upto rupees one lac, therefore, the judgment and decree recorded by the District Judge was without jurisdiction; and

(iii) that alternatively, the determination of consideration amount had to be made on the basis of evidence while discharging the burden of proof of the relevant issue placed on the appellant which he failed to prove as such the amount has to be fixed keeping in view the admission of the vendor incorporated in the sale‑deed. The learned counsel referred to the following authorities in support of his assertions:‑‑

(1) Visanda Mal and others v. Ganesha Mal and others AIR 1916 Lah. 208,

(2) Ram Samlhart Tewari v. Rajman Naik and others AIR 1918 All. 233,

(3) Mathura Prasad v. Karam Singh AIR 1929 Oudh 240(2) and

(4) Muhammad Iqbal v. Mst. Ghulam Roquia 2003 MLD 138

5. We have heard the learned counsel for the parties and also gone through the record carefully. The appellant instituted a pre‑emption suit claiming therein that he had a preferential right of prior purchase against a consideration of Rs.2,10,000, which, according to hurt, was actually paid against the defendant‑respondents in the Court of Civil Judge, Samahni. The trial Court decreed the suit against a consideration of Rs.4,00,000 as incorporated in the sale‑deed. The appellant filed an appeal before the District Judge, Bhimber in respect of consideration amount which was accepted and the amount was determined as Rs.2,10,000. This judgment and decree was attacked in an appeal before the High Court. The learned Judge in the High Court accepted the appeal and set aside the order passed by the District Judge on the ground that the value for the purpose of jurisdiction was not fixed according to law as according to him, the rules framed under section 3 of the Suits Valuation Act were applicable and thus, value for jurisdiction was market value and the District Judge had no jurisdiction to hear the appeal of such value. The learned Judge in the High Court made following observations:‑‑

"Now, the question under consideration is that under which law or provision of law, the value of the suit for the purposes of jurisdiction was fixed Rs.600. The value of the suit for the purposes of the court‑fee was to be fixed under section 7(v), (vi) of the Court Fees Act while the value for the purposes of jurisdiction was to be determined under section 3 of the Suits Valuation Act, because section 8 of the Suits Valuation Act contained that in suits other than those referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), (x) clause (d). Court‑fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of the court‑fees and the value for the purposes of jurisdiction shall be the same.

It means that in all other suits except the suits falling under paragraphs (v), (vi) and (ix) of section 7 and clause (d) of para. (x) of section 7 of the Court Fees Act, the value for the purpose of jurisdiction and court‑fee is one and the same. This section 8 of the Suits Valuation Act was not applicable to the present case and section 3 of the Suits Valuation Act shall apply to the instant case which contained as under:‑‑

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

The present suit of the respondent‑plaintiff falls under clauses (y) and (vi) of the Court Fees Act, therefore, the rules framed under section 3 of the Suits Valuation Act shall apply to the instant case . ...............

According to the aforesaid Rules, where the land forms an entire estate or a definite share of an estate or forms part of such an estate and annual revenue payable for such entire estate or definite share or part is recorded in the Collector's register and is permanently settled then the value of the suit for the purposes of jurisdiction shall be sixty times of the revenue so assessed on the land and in case, the revenue is not permanently settled then, thirty times of such revenue. It is also pertinent to note that where the land is a fractional share or a portion or part of an estate and the land revenue for such part is recorded in the Collector's register and is permanently settled then the value for the purposes of jurisdiction shall be thirty times. Where the land pays no revenue or is exempted from such payment of any fixed payment is being charged in lieu of such revenue and net profits have arisen from the land a year before the institution of the suit, then fifteen times of net profit shall be value for the purposes of jurisdiction. It is also to be noted that where the land forms part of an, estate paying revenue to the Government but is not a definite share of such an estate and does not come under clause (a), (b) or (c) of the aforesaid Rules, the market value of the land shall be the value for the purposes of jurisdiction of the case."

6. To appreciate the arguments advanced on behalf of the appellant, it would be relevant to see firstly the pleadings of the parties. The appellant in his suit fixed the value of the suit for the purposes of jurisdiction, and court‑fees in paras. 9 and 10. The answer to the aforesaid contents on behalf of the respondents is also given:‑‑

A perusal of the pleadings before the trial Court and the judgment passed by it do not indicate that any such objection was taken. Similar is the case before the District Judge where no such objection, in respect of the jurisdiction was ever raised or decided by the Court. Before coming to the point whether such objection can be raised at this stage of the case, we would like to see whether the value of the suit for the purpose of jurisdiction was determined in accordance with law. It may be mentioned that similar observations were made in respect of same proposition by the High Court in an other case which were set aside by this, Court in a case reported as Ghulam Rasool v. Muhammad Khan and another 2000 YLR 2104. The resolution is reproduced as under:‑‑

"(5) This provision of law, in our view, is not attracted in the present case for the simple reason that the land in question is assessed to land revenue in accordance with the statements of Patwari and Office Qanoongo. Muhammad Akram, the Patwari witness, deposed in the Court that the entire record of village Sahang was unattested. It was further stated by Patwari witness that the suit‑land is Mera Doem. The witness, as stated in earlier part of this judgment, however, deposed that the land revenue on Mera Doem is assessed as three Annas and three pies per Kanal of village Sahang which is so entered in Ser‑band. Similarly, it was stated by Manzoor Hussain, Office Qanoongo, that Khasra No.2149 is not assessed to land revenue, however, in actual register of Jamabandi in Pert Sarkar the land revenue is assessed which pertains to the whole Khata and is fixed as rupees five, eight Annas annually. In both the situations, in our view, if the value of the suit for the purpose of jurisdiction is fixed on the basis of land revenue on Mera Doem land, the case is triable by the Sub‑Judge. In the alternative even if the value of the suit is fixed on the basis of whole Khata, wherein the land in question is entered, the suit remains to be triable by the Sub‑Judge.

(6) In a case titled Muhammad Iqbal v. Farzand Begum and others (Civil Appeal No.81 of 1998, decided on 4‑12‑1998). It was held as follows:‑‑‑

"In our view the provisions applicable will be section 7, clause (vi) which may usefully be reproduced below:

(vi) to enforce aright of pre‑emption. ‑‑‑In suits to enforce a right of pre‑emption ‑‑‑according to the value (computed in accordance with paragraph (v) of this section) of the land, house or garden in respect of which the right is claimed."

Paragraph (v) of section 7 reads as under:‑‑‑

"(v) for possession of lands, houses and gardens .‑‑‑ In suits for the possession of land, houses and gardens‑‑‑according to the value of the subject‑matter and such value shall be deemed to be‑‑‑

(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to the Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue, and such revenue is permanently settled‑‑‑ ten times the revenue so payable;

(b) where the land forms as an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently‑‑‑five times the revenue so payable."

In a case reported as Sain v. Muhammad Din and others (1995 SCR 208), dealing with somewhat similar proposition it was observed as under:‑‑‑

`We may simply observe for the sake of guidance that in case the land is assessed to land revenue the court‑fee is computed under clause 7(v)(a) and (b) and if not assessed to land revenue the court‑fee is computed in accordance with section 7(v)(d) of the Court Fees Act and valuation of the suit is determined under section 8 of the Suits Valuation Act.'

Another observation also appears in the case titled Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 SC (AJ&K) 55), which is reproduced from page 59 and is to the following effect:‑‑‑

`A cursory reading of section 8 will show that the suits covered by section 7 paras.(v), (vi) (pre‑emption suits) and (ix) and (x), clause (d) are explicitly excluded from the operation of section 8. Therefore, for determining the pecuniary jurisdiction in a pre‑emption suit the proper section applicable will be section 3 of the Suits Valuation Act and the rules made thereunder...'

(7) It has been strenuously argued by Raja Muhammad Siddique, the learned counsel for respondent No. 1, that even if the land revenue is assessed on the suit‑land, the same is not paid as the land revenue has been exempted by the Government, as such it cannot be said by any stretch of imagination that on the suit‑land the land revenue was paid. In our view the contention raised by the learned counsel for the respondent merits no consideration for the simple reason that actual payment of land revenue is not mandatory portion of the procedure laid down for assessing suit valuation. It is the land revenue which is payable to the Government and not its actual payment which is key to the procedure for valuation. This is clear from the fact that in the subsequent provision the word "payable" and not "being paid" has been used.

7. In the present case, the suit‑land was assessed to land revenue and its value for the purpose of jurisdiction was determined as Rs.600 but the same was not paid having been exempted by the Government, therefore, in case the land is assessed to land revenue the court‑fee computed under section 7(v)(a) and (b) and if not assessed as land revenue the court‑fee is computed in accordance with section 7(v)(d) of the Court Fee Act and valuation of the suit is determined under section 8 of the Suits Valuation Act.

9. Raja Muhammad Siddique Khan, the learned counsel representing the appellant, alternatively argued that this argument was not available to the respondents in appeal filed before the High Court. It was contended that the respondents did not raise this argument in the pleadings during the arguments before the trial Court or even before the District Judge, therefore, there was no occasion to raise this argument before the High Court. It was also added that forum of appeal is determined on the jurisdictional value given in the plaint, therefore, his appeal before the District Judge was competent. The learned counsel relied upon a case reported as Muhammad Hussain v. Muhammad Afsar and 5 others 2001 YLR 3280 where the following observations were made:‑‑

"(5) We have given due consideration to the arguments advanced at Bar. The moot point in the case is as to whether the learned Sub‑Judge was justified in holding that as separate value of house was not mentioned in the sale‑deed, he was competent to proceed with trial of the suit. Irrespective of the fact whether any separate value of the house was not recorded in the sale deed, it was imperative on the plaintiff to fix the jurisdictional value according to the relevant law of the land. In the instant case, the court‑fees and jurisdictional value, were to be fixed in view of the provisions of the Court Fees Act, the Suits Valuation Act and the rules framed under section 3 of the Suits Valuation Act. The jurisdictional value of the house was to be fixed according to the value of the same. According to the evidence led before the trial Court, it is amply clear that the market value of the house was more than Rs.25,000, if the market value of the land determined on the basis of land revenue is added to.‑it, the jurisdictional value of the suit would be further increased. Thus, we are of the opinion that in view of the jurisdictional value ascertainable on the basis of evidence recorded by the trial Court, the suit was not triable by the Sub -Judge.

(6) We agree with the learned counsel for the respondents that the High Court was not correct in holding that the appeal filed by the appellant for the reduction of the amount was not competent before the District Judge but one filed by the respondents challenging the pre‑emption decree passed in favour of the appellant was within his jurisdictional competence. In view of the provisions of subsection (2)(a) of section 36 of the Courts and Laws Codes, 1949, the forum of appeal is to be determined on the jurisdictional value given in the plaint and not the subject‑matter of the appeal. Section 36(2)(a) is reproduced as under:‑‑‑

"36.(1) ..

(2) An appeal from a decree or order of a subordinate Judge shall be:

(a) to the District Judge when the value of the original suit in which the decree or order was made, does not exceed Rs.5,000; '

(b) "

It is evident that the value fixed in the original suit is to be considered while determining the forum of appeal. Thus, in the present case the appeal filed by the appellant, herein, lay to the District Judge, because according to the appellant the jurisdictional value of the suit was Rs.100 though that was controverted by the respondents. Even otherwise, both the appellant and the respondents filed appeals before the District Judge, they are debarred from challenging his competence to hear the same in view of the provisions contained in section 11 of the Suits Valuation Act which stipulates that if objection regarding over‑valuation or under‑valuation of a suit or appeal is not raised in the trial Court before or at the time of framing the issues and in the appellate Court in the memorandum of appeal, the same cannot be raised afterwards. Thus, we are of the opinion that in view of the respective contentions of the parties, both the appeals were competent before the District Judge. However, as the suit filed was not within the jurisdictional competence of the Sub‑Judge, the decree of pre‑emption passed in favour of the appellant has 'rightly been set aside by the District Judge and the appeal against the same to the High Court was also rightly dismissed. Therefore, the appeal filed by the appellant before the District Judge for the reduction of the pre‑emption amount is inconsequential in the instant case."

9. A perusal of the record shows that the objection was not taken in the pleadings or in arguments either before the trial Court or the District Judge, therefore, it could not be raised before the High Court. The point was not correctly attended and decided in accordance with law. The proposition finds support from the case reported as Muhammad Suleman and another v. Javed Iqbal and another PLD 1985 SC (AJ&K) 1 where the following observations were made:‑‑

"It may be noted that where the want of jurisdiction is not apparent on the face of the proceedings but the absence of the jurisdiction depends on a fact within the knowledge of a party and he does not bring it forward but allows the Court to proceed with the judgment, he ought not to be allowed to impeach the jurisdiction of the Court in any collateral proceedings. I observe so because in the instant case, want of jurisdiction of the trial Court (though pleaded in the trial Court) was not pleaded by the appellants in the first or second appeal and, therefore, the appellants are now estopped to raise it for the first time in this Court and that too during the course of argument . .......

As regards the provision in section 11, Suits Valuation Act, it should be noted that the restriction is of a special kind. It applies only to cases of the nature where it might be alleged that by reason of over‑valuation or under‑valuation that there was defect in jurisdiction. The section assumes there is no apparent defect. The Court has jurisdiction on the valuation given. The section merely limits the power of the Appellate Court to consider an objection, and it is to be inferred; I think, that the decision on the point, express or implied, possesses the same finality as the decision on any issue in the suit. I would, therefore, say that the decree of the Sub‑Judge here cannot be treated as a nullity even though proper valuation of the suit may be beyond its jurisdiction.

My view is that in a suit to obtain the declaration it is difficult to determine what the true value of the relief sought is. Therefore, a Court shall not lightly disturb the plaintiff's valuation if apparently it is correct; and if the Court accepts the plaint even after objection (as is done in this case) that is an end of the matter and thereafter all the proceedings must be controlled by the valuation fixed by the plaintiff.

Even, I assume, the defect in the jurisdiction of the Sub -Judge, it stands cured by section 11(b) of the Suits Valuation Act. Section 11 of the Suits Valuation Act provides that an objection that by reason of the over‑valuation or under‑valuation of the suit a Court has no jurisdiction to try it, shall not be entertained by an Appellate Court though taken in the Court of first instance unless the Appellate Court is satisfied that there was over‑valuation or under‑valuation and this fact had prejudicially affected the disposal of the suit on its merits. This view, which appears to have constantly taken of this provision, is that (as also section 21, Code of Civil Procedure which deals with the territorial jurisdiction) there are exceptions to the general rule that the judgment of a Court without jurisdiction is nullity and that want of jurisdiction cannot be waived."

10. Ch. Ali Muhammad, the learned counsel for the respondents, argued that the appeal before the District Judge did not relate to the right of pre‑emption but for the reduction of the consideration amount, therefore, forum of appeal, according to law, was not the District Judge as such the judgment and decree passed by him was not maintainable. He relied upon a case reported as Muhammad Iqbal v. Mst. Ghulam Roquia 2003 MLD 138 where it was held:‑‑

"(3) I have stated the necessary details of the proceedings above. I have examined the said judgment in the case of "Ilahi Bakhsh and others". There is no doubt that so far as pre‑emption suit (meaning a suit for possession of land by pre‑emption) is concerned, the same has to be valued in accordance with section 7(v) of the said Court Fees Act, 1870. Thus where a decree for possession by pre‑emption itself is questioned or is claimed then the suit or the appeal has to be valued in the said terms. However, as stated by me above, in the present appeal, the applicant was not claiming a decree for, possession. On the other hand, the decree had already been granted to him by the learned Court of the first appeal. His claim was that the sale price be reduced by Rs.65,000. The said relief does not fall within the said provision of Court Fees Act of 1870. It is settled law that an appeal in which the appellant asked the Court to reduce by a certain sum, the amount payable by him under the orders of the first Court the said sum represents the value of the subject‑matter of the appeal and it is upon that sum, that he must pay the ad valorem fee specified in Article 1 of the 1st Schedule to the Court Fees Act, 1870. Reference be made to a D.B. judgment of this Court in the case of Haji Ghulam Qadir v. Abdul Qadir (PLD 1952 BJ 62).

11. It is no doubt correct that if the question of right of pre‑emption in respect of agricultural land in appeal is not involved and the matter relates to the reduction of amount, the jurisdictional value shall be determined according to that amount which, according to law is not in the jurisdiction of District Judge. The contentions of Raja Muhammad Siddique Khan, on the basis of judgment passed by this Court in a case reported as Muhammad Hussain v. Muhammad Afsar and 5 others 2001 YLR 3280 are without any substance. It is worth‑mentioning that facts of that case were different as to the present case and in fact the judgment and decree of the District Judge was maintained on the ground that aforesaid objection was not raised before that Court apart from the fact that opposite party which took this objection before the High Court had also filed an appeal before the same Court, therefore, objection was, overruled but it does not in any way lay down that in all cases where the subject‑matter is the consideration amount and the question of pre‑emption right is not involved, the appeal According to the jurisdictional value determined in the trial Court, would be heard by the District Judge.

12. In the present case the objection in respect of the jurisdiction of the District Judge was first time raised before the High Court, therefore, keeping in view the observations made in a case reported as Muhammad Hussain's case 2001 YLR 3280 we hold that the objection at this stage of the case could not be raised as such the judgment and decree passed by the High Court is set aside by accepting the appeal. Resultantly the judgment and decree passed by the District Judge stands restored. The appellant is directed to deposit the consideration amount of Rs.2,10,000 along with the sale‑deed expenses amounting to Rs.16,132, total Rs.2,26,132 within a period of thirty days failing which the suit shall stand dismissed.

H.B.T./139/SC(AJ&K) Appeal accepted.