ILAHI BAKHSH AND OTHERS vs Mst. BILQEES BEGUM

1. ' INASIM HASAN SHAH, J.-This judgment will dispose of both the above appeals because the question of law requiring determination in both is the same, namely, whether the decisive factor for purpose of section 18 of the West Pakistan Civil Courts Ordinance (II of 1962), in determining the forum of appeal for purposes of jurisdiction in a suit pertaining to pre-emption of agricultural land is the value of the original suit as fixed under the rules framed under section 3 of the Suit Valuation Act or the market value of the subject-matter of the suit? For disposal of this point it will be sufficient to refer to the facts of Civil Appeal No, 11 of 1985.

2. ' In the said case 501 Kanals 1 Marla was purchased by appellants Nos. 1 and 2 for a consideration of Rs, 2 lacs vide Mutation No, 98, dated 16-2-1972. Two suits were brought to pre-empt this sale, one by Mst. Balqees Begum respondent and the other by Mst. Sajida Parveen etc. (As the portion of the suit land was subsequently sold by appellants Nos. 1 and 2 in favour of appellant No, 3, he was, therefore, also included in the array of the defendants). The respondent valued her suit for the purpose of court-fee at Rs, 1,520.10 and fixed the jurisdictional value at Rs, 4,560.30; The suits were consolidated and tried together.

3. ' The learned trial Court, vide judgment dated 12-2-1981, dismissed the suit of Mst. Sajida Parveen etc. Holding that they had "absolutely no preferential qualification qua the defendants-vendees" but the suit of Met. Balqees Begum, being daughter of vendor, was decreed on payment of Rs, 2 lacs. The sale price of Rs, 2 lacs was, indeed, conceded by the plaintiffs before the trial Court.

4. ' The appellant filed a first appeal against the decree directly in the High Court in so far as the decree for possession of the suit land had been passed on payment of Rs, 2 lacs, which exceeded the pecuniary jurisdiction of District Judge. A preliminary objection was, however, raised on behalf of the respondent that the appeal against the impugned decree was not competent in the High Court on the ground that the value of the suit for the purposes of jurisdiction was fixed at Rs, 4,560.30 and that it was the said value which was to determine the forum for the appeal, irrespective of the amount on payment of which decree for possession was passed. Hence, the appeal should have been preferred before the District Judge.

5. ' On behalf of the appellants it was contended that the forum for the appeal was to be determined not by the jurisdictional value of the suit but by the value of the subject-matter which in pre- emption cases is the sale price or the market value of the suit land.

6. ' A Division Bench of the Lahore High Court, relying on Mumtaz Begum v. Ch. Zulfigar Ali (1) and Sadar Din v. Elahi Bakhsh and another (2) upheld the objection raised by the respondent and found that the appeal against the impugned decree was not competent in the High Court and, therefore, ordered that the appeal be returned to the appellant for presentation to the competent Court. This appeal, by leave of this Court, is directed against the aforesaid judgment and order passed by the Lahore High Court.

7. ' The learned counsel appearing on behalf of the appellants have challenged the correctness of the view taken by the High Court. According to him the expression "value of the original suit occurring" in clause (a) of subsection (1) to section 18 of the Civil Courts Ordinance 1962 does not mean the value mentioned by the plaintiff in the plaint, but means the market value of the subject- matter of the suit. It is submitted that the learned Judges in the High Court in holding to the contrary were influenced by the decision in Mumtaz Begum v. Ch. Zulfigar Ali. The said judgment, however, was not relevant because the situation is now governed by a new statute, namely, by the provisions of Ordinance II of 1962, viz., section 18(1)(a) thereof.

8. ' To appreciate this submission it is necessary to examine the position of the law up to the promulgation of the Ordinance II of 1962 and then to examine whether the said position stands altered by the said Ordinance ?

9. The term "pre-emption suit" is a suit for possession of a property in dispute on payment of its sale price or market value. A decree enforcing the pre-emption right must direct the vendee to deliver possession of the property to the pre-emptor-plaintiff on condition and subject to the plaintiff paying the sale price of market value of the property in Court for the benefit of the vendee vide Order XX, rule 14, C. P. C. The decree must further direct that if the plaintiff does not pay the said amount within the time specified in the decree, then the suit shall stand dismissed. The direction in the decree relating to payment of the amount in Court cannot be enforced by the vendee- defendant or by the vendor-defendant if the plaintiff is unwilling to do so. It follows that the original value of the pre-emption suit is the value of the property involved in the litigation unless there is any provision in the Suits Valuation Act which is inconsistent with this mode of computing jurisdiction value.

10. ' In the present case the property in dispute is an agricultural land. Paragraphs (v) & (vi) of section 7 of the Court Fees Act read :- "(v) 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 where the subject-matter is land, and

(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately

(1) PLD 1960 Lab. 1088 (2) PLD 1976 Lab, assessed with such revenue, and such revenue is permanently settled-ten times the revenue so payable ; a. 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 ; a. Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint-fifteen times, such net profits : but where no such net profits have arisen therefrom-the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood. a. Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above-mentioned the market-value of the land : Explanation.-The word "estate" as used in this paragraph means any land subject to the payment of revenue for which the proprietor or farmer or Raiyat shall have executed a separate engagement to Government or which, in the absence of such engagement, shall have been separately assessed with revenue : a. For houses and gardens-where the subject-matter is a house or garden -according to the market-value of the house or garden : Under the above provisions the valuation for purposes of court-fee in this case is to be made on the basis of land revenue, that is, :en times the revenue payable on the land in suit and the court-fee, in such a suit, is not to be computed or calculated on the basis of its market-value. It will be observed that while under paragraph (v)(e) and (vi) of section 7 of the Court Fee Act, a pre-emption suit relating to a house or a garden is to be valued according to the value of the subject-matter, i,e, according to its market value or sale-price ; the Legislature for reasons best known to it has laid down that such a suit relating to agricultural land is to be valued on the basis of land revenue payable. This valuation is, as already mentioned, for purposes of court-fee only.

11. ' Coming now to the jurisdictional value to be fixed in a pre-emption suit relating to agricultural land, this value is fixed in accordance with the provisions of the Suits Valuation Act, 1887. Section 3 of this Act reads :- "(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."

12. ' The suit in the instant case falls expressly within the terms of section 3 of the Suits Valuation Act.

13. ' The Provincial Government has framed rules under Suits Valuation Act for determining the value of land for purposes of jurisdiction in suits mentioned in the Court Fees Act, section 7, paragraphs (v) & (vi) and paragraph (x), clause (d). The relevant rules may be reproduced below :- "1. Suits for possession of land.-In suits for the possession of land the value of the land for purposes of jurisdiction, shall be held to be as follows :- a. . b. Where the land forms 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 revenue is settled, but not permanently-thirty times the revenue so payable.

14. ' Explanation:-.

2. Land assessed to land revenue.-In suits to enforce a right of preemption in land, the value of the land for the purposes of jurisdiction, shall be calculated by the preceding rules."

15. ' It is, thus, obvious that the value for the purpose of jurisdiction in a suit for pre-emption shall be held to be thirty toes the land-revenue. As already indicated the value for the purposes of court- fee and jurisdiction in the present case was fixed on the basis of the above-mentioned provisions.

16. Undoubtedly, the notional value fixed according to the above rules is in certain cases far less than the market value, as is clear from the difference in the two values in the present case. (The market value being rupees two lacs while the notional value is only Rs, 4,560..50). However, there is no provision in the Suits Valuation Act laying down that the jurisdictional value of a suit can ever be altered. It follows that the value so fixed is not tentative but is once for all. Section 8 of the D Suits Valuation Act, which lays down that the value of a suit on ad valorem! Basis shall be the same for purposes of court-fee and jurisdiction, specifically excludes its application to a pre-emption suit.

17. ' A Division Bench of the West Pakistan High Court (Lahore Bench) in a well-considered judgment, in the case of Mumtaz Begum v. Zulfiqar Ali held that in suits for pre-emption the jurisdictional value of the appeal remains the same as determined under the Suits Valuation Act and the rules framed thereunder notwithstanding the amount determined by the Court on payment of which the decree for pre-emption is passed. In so holding all the leading cases on the subject were examined, namely, Muhammad Afzal Khan v. Aland Lal (1) ; Iftikhar Ali v. Thakar Singh (2) ; Malha and others v.

18. Bishen Singh and others (3) ; Jogdish Ram v. Mst. Chinto and others (4) and Sham Singh v. Jagat Singh and another (5).

19. ' However, it has been contended that the provisions contained in section 18 of Ordinance II of 1962 have altered the situation. It would, therefore, be appropriate to reproduce the provisions of section 39 of the

(1) 16 P R 1908 (2) 83 P R 1912

(3) AIR 1925 Lab. 41 (4) AIR 1936 Lah, 133

(5) AIR 1938 Lab. 765 ' Punjab Courts Act, before adverting to section 18 of the Ordinance II of 1962. The relevant portion of section 39 reads :- "39 (1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall - a. To the District Judge where the value of the original suit in which the decree or order was made did not exceed five thousand rupees ; and b. To the High Court in any other case."

20. ' This brings us to section 10 of Ordinance H of 1962. Section 18, to the extent relevant, reads as under "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 Rs, 50,000. b. To the District Judge in any other case.

(2) .

21. ' It is important to observe that the expression employed in section 18 (1)(a) is "value of the original suit". The term "value" according to clause (h) of section 2 of the Ordinance is explained thus : "value" used with reference to a suit means the amount or value of the subject-matter of the suit.

22. This shows that the forum of appeal is to be decided according to the value of the subject-matter fixed in the original suit. It means that irrespective of the amount for which the decree is ultimately passed the appeal will lie to the High Court or the District Judge according to the value of the original suit. In most of the suits the value for the purposes of court-fees and jurisdiction is determined on the basis of the claim in the suit or on the market value of the property. However, in certain cases like 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 for purposes of jurisdiction the value of such suits 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, in this case, was fixed at Rs, 4,560.30 and no objection was taken to this amount. The forum of appeal has, as discussed above, also to be determined by this value.

23. It is, no doubt, open to the Legislature to fix the value of the subject-matter of the suit either at its market value or at any notional or artificial figure. When the Legislature decides to fix a jurisdictional value of the subject-matter of a suit, then that value must regulate not only the forum of the suit but also the forum of the appeal. Thus, the Court of the lowest grade with jurisdiction of this value will be competent to entertain and decide the suit and the appeal will similarly lie to the Court having jurisdiction to entertain appeals of this value.

24. ' A pre-emption suit or an appeal in which the right of pre-emption is asserted is no exception.

25. However, a pre-emption suit has one special feature. It cannot be decreed without a direction regarding payment of market value or sale-price by the pre-emptor decree-holder. It is, therefore open to the Legislature to fix the value of a pre-emption suit at the market value or a sale-price of the property in suit or at a notional figure. The Legislature has, indeed, fixed the market value or sale-price (as the case may be) as the value of the suit when the property involved is a house or a garden but in case of a suit for pre-emption relating to agricultural land the Legislature has fixed a notional value instead of its market value or sale-price for purposes of computing its jurisdictional value. In view of this expression of the legislative intent it is not open to a Court of law to take into consideration the market or sale price of the land simply because the pre-emption decree must contain a direction with regard to the payment of the market value or sale price of the subject- matter of the suit-land.

26. ' There can hardly be any doubt that the Legislature while enacting the Court Fees Act and the Suits Valuation Act was aware of this special feature of a pre-emption suit, namely, that a direction has to be made in the decree that the market value or sale-price must be paid by the preemptor, and yet it chose to ignore the market-value or the sale price for purposes of court-fee and jurisdiction in suits relating to agricultural land though it retained it in suits relating to a hotise or a garden. It is, therefore, not open to us to take notice of a value which the Legislature has chosen to ignore for this purpose.

27. A perusal of the provisions of section 18 of Ordinance II of 1962 also does not provide anywhere that the forum of appeal is to be determined on the basis of the sale price or the market value of the land. It only lays down that this is to be determined on the basis of the value of the original suit. The value of the suit in such a case being the one which is notionally fixed, as already explained above, it will be the same value which will determine the forum of appeal.

28. ' In fact, the question is really no longer resintegra. This Court in the case of Jan Muha mad and others v. Dr. Abdul Ghafoor etc. (1) already/ clarified that the value for purposes of jurisdiction in the matter of appeal shall be the same as in the plaint. In this connection, the following observation appearing at page 463 of the report is relevant :- "The plaintiff went up in appeal before the District Judge on the valuation for purposes of jurisdiction stated in the plaint, namely, Rs, 3,091.14 that was the correct forum of appeal"

29. (Underlining is ours)

30. ' This view was followed and elaborate reasons adduced therefor by The Lahore High Court in the case of ,radar Din v. Elahi Bakhsh with which we also agree.

31. The conclusion, therefore, is that for ascertaining the forum of appeals in land suits under section 18 of the Ordinance the value of the original suit as determined under the rules framed under section 3 of the Suits Valuation Act for purposes of jurisdiction will be the determining factor and not the market value as sale price of the subject-matter of the suit.

32. ' The view taken by the High Court in both the appeals, is, therefore, correct and does not require any interference.

33. It may, however, be observed that we have not been able to appreciate' the wisdom of the Legislature in fixing a notional value for purposes of court-fee and jurisdiction in the case of pre- emption suits for possession of K agricultural land. The fixation of such a value for suits for possession of land simpliciter is perhaps understandable but thz extension of the principle

(1) PLD 1966 SC 461 *(Here is italics) to pre-emption suits does not appear to be reasonable and the instant case is an apt example of its unreasonableness. Herein admittedly the market value of the land was Rs, two lacs, but on account of the artificial rule governing the matter its value for purposes of court-fee was fixed at Rs, 1,520 and that for jurisdiction Rs, 4,560.30. Remedial legislative action is obviously desirable. In fact, this has already been pointed out by this Court in Shahna Khan v. Aulia Khan (1) Civil Appeal No, 184 of 1980, decided on 21st November, 1983 wherein it was observed, inter alia "If a pre-emptor is ready to pay the price paid by the vendees or whatever is determined by the Court, as the price payable by him, he should be ready to pay the court-fee accordingly (if, of course, on principle the court-fee is made leviable at the limit of the value concerned)".

34. ' We expect the Ministry of Justice to give due consideration to the above aspect and direct that a copy of this judgment be forwarded to the Secretary, Government of Pakistan in the Ministry of Justice, Islamabad for this purpose.

35. ' The result is that both the instant appeals fail and are, accordingly, dismissed with costs, subject to the observations made above.

(1) PLD 1984 SC 157