' SH. HAKIM ALI, J.--- Ghulam Muhammad had filed a suit for partition with regard to Shop No,39, situated in Ghalla Mandi Hasilpur, and Shop No,11-B (half western) of main Bazar Hasilpur, against his brother Abdul Majeed, who expired during the pendency of that suit and in his stead legal representatives were impleaded. The value for the purpose of court-fee and jurisdiction was fixed by the plaintiff at Rs,24,000 in the suit, therefore, the court-fee was not paid due to it being exempted from payment of court-fee. During the pendency of the suit, there was an agreement entered into between the parties for appointment of Arbitrators for decision of the case through the intervention of the Court. Hafiz Khadim Hussain, Muhammad Iqbal and Ch. Muhammad Jameel Johar, were appointed as Arbitrators who unanimously, on 21-3-2003, decided the dispute referred and submitted the award. Dissatisfied from the award, both the parties filed objection petitions against that award but learned Civil Judge came to the conclusion that the award was correctly delivered by the Arbitrators, so by accepting that award, it was made a rule of Court on 2-8-2003.
The award was made part of the decree of the Court by the learned Civil Judge, Hasilpur. This decree was assailed before learned Additional District Judge, Hasilpur, by respondent No, 1/plaintiff through filing of appeal. Muhammad Sharif etc. After appearing in the appeal filed petition objecting to the maintainability of the appeal as it was without affixing the proper court-fee. That petition was contested but was dismissed by learned Additional District Judge on 14-1-2004, hence this civil revision.
2. Learned counsel for the petitioner submits that appeal was filed without appending proper court-fee, therefore, it was not an appeal in the eye of law. The decree which was passed upon the award had fixed the value of share of property of the plaintiff to the tune of Rs,6,00,000 and this amount was to be paid by the defendant to the plaintiff in compliance of that award/decree, therefore, the appeal must have contained the valuation of court-fee at Rs,6,00,000 and ad valorm court-fee was to be paid by the appellant on the appeal before learned Additional District Judge.
Learned counsel has supported his arguments through the judgments of Province of Balochistan v.
Sardar Muhammad Usman Khan PLD 1987 Quetta 33 and Gauri Shankar v. Anat Rain AIR 1926. Lah.
403.
3. On the other hand, learned counsel for respondents submits that in law court-fee of Rs,10 only was to be affixed on the partition suit and this was the proper court-fee to be affixed upon the memorandum of appeal as well because the appeal was a continuation of the proceedings of the suit. Learned counsel has also referred to a judgment reported in Mst. Bibi Lal Bibi v. Mir Baluch Khan PLD 1962 (W.P.) Quetta 28 to fortify his argument. According to the learned counsel court-fee of Rs,10 was proper for memorandum of appeal and learned Additional District Judge had correctly rejected the petition of the petitioner. He has also submitted that appeal being continuation of the suit would not fetch any more court-fee than the fee of Rs,10 affixed upon the plaint.
4. After considering the arguments of learned counsel and from the perusal of the record, I have not been able to agree with the arguments of learned counsel for the respondent because there is no cavil to the proposition that partition suit when instituted the subject-matter of it cannot be valued for the purposes of court-fee, for more than Rs,10 which is fixed according to Article 17(vi)
Schedule II of the Court Fees Act No,VII of 1870, the reason behind at that stage, is that share of plaintiff in the property in dispute is not separated, specified and valued. At the time of preliminary or final adjudication when share of the plaintiff is specified and its value is fixed then it fetches ad valorem court-fee according to valued share of plaintiff. In the instant case, it is an admitted fact that share of the plaintiff was valued at Rs,6,00,000 and defendants were directed to pay Rs,6,00,000 to the plaintiff, therefore, value of the suit had increased and enhanced to the extent of Rs,6,00,000 and Rs,10 court-fee based on notional value was to disappear so as to leave place for the ascertained value. In such an event, it was the duty of the appellant to value the appeal at Rs,6,00,000 and to fix court-fee ad valorem according to Article 1 Schedule I of the Court Fees Act. In PLD 1987 Quetta 33 above mentioned, it was held that against the decree delivered in terms of award, where appeal was filed against that decree, the ad valorem court-fees would be paid for such appeal and amount of ad valorem court-fees would be calculated according to Article 1, Schedule I of Court Fees Act. It was further held that memorandum of appeal without proper court- fee was not an appeal in the eye of law. In AIR 1926 Lah. 403, it was held that appeal arising from the decree must bear ad valorem court-fee.
5. The judgment of PLD 1962 (W.P.) Quetta 28 cited above cannot be held applicable to the facts and circumstances of the case because in that judgment question involved was with regard to the affixing of court-fee upon the plaint. But in the instant case, appeal was filed against the judgment which was passed on the basis of award, in which Rs,6,00,000 were granted to the plaintiff. That decree was being challenged in the appeal, therefore the difference is apparent. In AIR 1924 Lah.
325 (DB), it was held that ad valorem court-fee must be paid when the appeal was to attach various items allowed or disallowed in the final decree of partition. Accordingly, the order, dated 14- 1-2006 passed by the learned Additional District Judge cannot be upheld, which is set aside and the respondents/appellants are directed to value the memorandum of appeal in accordance with value fixed in the award, i,e, to the extent of their share of the property and to pay ad valorem court-fee in accordance with that value, on the date to be fixed by the learned Additional District Judge. For what has been discussed above, the instant civil revision is accepted with the above noted direction.