' By this judgment I dispose of R. S. As. Nos. 865 and 866, both of 1976, since common questions of law and fact are involved therein and the trial Court also disposed of both the suits out of which these appeals have arisen by a single judgment dated 15-9-1975 having tried the same together after consolidation thereof.
2. Briefly stated, the facts leading to these two appeals are as under :
3. Mehraj Din and Minhaj Din sold their land measuring 379 kanals 8 marlas, situate in Barthala, Tehsil Sadiqabad, District Rahimyarkhan to the respondents, vide sale-deed dated 2-6-1973, for a consideration of Rs, 1,60,000. The appellants in these appeals, namely Mubarak and Feroze sons of Waryam, who are real brothers, claimed to be in possession of 64 kanals of land out of the aforementioned 379 kanals 8 marlas as tenants. The land measuring 64 kanals was comprised of Killas Nos. 20, 21 and 22 of rectangle No, 325/13 and Killas Nos. 1, 2, 10, 11 and 20 of rectangle No, 325/14. Mubarak and Feroz appellants-plaintiffs instituted two separate suits claiming superior right of pre-emption as tenants for pre-empting the sale of half share each in the aforementioned 64 kanals of land. The value for purposes of court-fees was based on the statement of net profits annexed with each plaint showing an annual net profit of Rs, 594. The value on this basis therefore was calculated as Rs, 8,910 and dividing it by two for each suit was placed at Rs, 4,455. It was, inter alia, alleged in the plaint that in order to ward off a pre-emption of the sale the price shown in the sale-deed was exaggerated.
4. Both the suits were resisted by the respondents-defendants. The learned Civil Judge First Class, Rahimyarkban, by his order dated 17-1-1975, consolidated both the suits and tried them together.
On the divergent pleadings of the parties, the learned trial Court framed six issues. The one relevant for the purpose of the present controversy was issue No, 3 which is reproduced hereunder for facility of reference : "(3) Whether the suit is liable to dismissal for partial pre-emption? 0. P. D."
' The learned trial Court found this issue against the appellants-plaintiffs and in favour of the respondents-defendants and consequently by its judgment dated 15-9-1975 dismissed both the suits with no order as to costs. It did not record any findings on the other issues in view of its finding on issue No, 3.
5. Feeling aggrieved by the judgment and decree of the learned trial Court dated 15-9-1975, the appellants-plaintiffs preferred separate first appeals to the District Judge, Rahimyarkhan, who by his judgment dated 16-9.1976, dismissed the same leaving the parties to bear their own costs.
Hence the present appeals by the appellants-plaintiffs.
6. The learned counsel for the respondents in both the appeals raised a preliminary objection that the court-fee paid on the appeals is deficient and that the appeals are liable to be dismissed on this short ground alone. He contended that in R. S. A. No, 865 of 1976-LHR., the value for the purpose of court-fee has been fixed at Rs, 4,455 and the court-fee payable thereon comes to Rs, 334.55 whereas the court-fee actually paid was Rs, 217.50. Similarly, he submitted, that in R. S. A. No, 866 of 1976 though the value has been fixed at Rs, 4,455 but it has been arbitrarily divided by two without showing any reason and the court-fee paid again was Rs, 217.50. He further urged that the suit filed by Feroz out of which R. S. A. No, 866 of 1976 has arisen was filed on 16-10-1973 whilst that filed by Mubarak out of which R. S. A. No, 865 of 1976 has arisen was filed on 22-1-1974 meaning thereby that both the suits were filed after the promulgation of the Punjab Finance Act, 1973. According to the learned counsel, the court-fee payable on the plaint also was Rs, 334.65 whereas actual paid was Rs, 217.50 and it was deficient there as well. He submitted that in view of the pronouncements of the Supreme Court in Mst. Walayat Khatoon v. Khalil Khan and another (1) and Abdus Sattar Khan and another v. Hafiz Muhammad Bakhsh and another (2) these appeals are liable to be dismissed as there is neither any bona fide mistake nor any good reason shown for non-payment court-fee and that, on the contrary, the conduct of the appellants had been negligent and contumacious in that they did not even care to make good the court-fee and apply for the purpose under section 149 of the Code of Civil Procedure despite the deficiency of court-fee paid on appeals having been brought to their notice by the respondents by filing Civil Miscellaneous No, 1058/1978-BWP. In R. S. A.
No, 865 of 1976 and C. M. No, 1059/1978-BWP in R. S. A. No, 866 of 1976.
7. On the other hand, the learned counsel for the appellant submitted that if the court-fee paid was deficient it was the duty of the Court to assess the same correctly under section 10 of the Court Fees Act and the appellants were entitled to grant of time for making up the deficiency in payment of the court-fee as provided by section 149, C. P. C.
8. In reply, the learned counsel for the respondents contended that the question of grant of time for making up the deficiency in court-fee under section 149, C. P. C. Did not arise as the appellants did not care to file an application for the purpose. He relied on Lal Shah v. Muhammad Ishaq (3) in support of his contention.
9. After hearing the learned counsel for the parties on the preliminary objection raised on behalf of the respondents, I allowed the learned counsel to address on the merits of the cases as well.
10. The learned counsel for the appellants contended that the Courts below omitted to consider the provision of paragraph 25(3)(d) of Martial Law Regulation No, 115 while holding that the suit was for partial preemption in that the appellants-plaintiffs could sue for pre-empting half share of the land in dispute as they were tenants to the extent thereof.
11. The only other contention raised by him was that at the time the learned District Judge, Rahimyarkhan heard the appeals and decided the matter vide the impugned judgments dated 16- 9-1976, a forum for suits of pre-emption based on the superior right as a tenant had been created by addition of sub-paragraph (5) of paragraph 25 ibid and the exclusive jurisdiction therefor had been conferred on the Collector. He submitted that the (1) PLD 1979 SC 821 (2) 1979 SCM R 243 (3) PLD 1977 Lab. 105 learned District Judge should have accepted the appeals and sent the cases for adjudication by the Collector.
12. The learned counsel for the respondents, on the other hand, contended that the question of acceptance of the appeals could never arise as there was no forum created for pending appeals as was done for pending suits. He submitted that the appeals had been rightly decided by the lower Appellate Court.
13. The next contention raised on behalf of the respondents was that the appellants were not joint tenants and thus could not sue for half share in the total land in dispute. He referred to Exh. P. 3, a document produced by the appellant himself to show that Mubarak appellant was the exclusive tenant in Killas Nos. 20 and 22 of Rectangle No, 325/13 as also in Killas Nos. 2 and 20 of Rectangle No, 325/14, whereas Feroz appellant was exclusively the tenant in Killas No, 21 of Rectangle No, 325/13 and Killas Nos. 1 and 11 of Rectangle No, 325/14. In this manner he submitted that the suits of both the appellants-plaintiffs being for half share in each of the killa numbers aforementioned which were in their exclusive tenancy respectively made them suits of partial pre-emption.
14. The preliminary objection raised on behalf of the respondents has great force and must therefore be sustained. The valuation put by the appellant himself for purposes of court-fee in the relevant memorandum of appeal is Rs, 4,455 and rightly so as the statement of net profits annexed with each of the plaint shows the annual net profit as Rs, 594 for 64 kanals of land and multiplying it by 15 would bring it to Rs, 8,910. Since in each plaint half share was claimed, Rs, 8,910 had to be divided by two which brings the value for purposes of court-fee in each suit and in the consequent appeal to Rs, 4,456. The court-fee payable on each appeal therefore was Rs, 334.12 but actual fee paid was Rs, 217.50. The court-fee therefore paid is thus apparently deficient of the one payable under the law. Not to say of making up the deficiency the appellants have not even cared to apply for permission to make up the deficiency by making application under section 149, C. P. C. Despite the factum of deficient court-fee having been brought to their notice by the respondents by filing the aforementioned civil miscellaneous petitions in paragraph 2 whereof this fact has been clearly brought out. The appeals therefore are liable to dismissal on this ground alone.
15. The contention raised by the learned counsel for the appellants that it was the duty of the Court to have first assessed the court-fee and then given them an opportunity to make up the deficiency in the matter of appeals is wholly irrelevant. There can be no two opinions on the proposition that the provisions of Order VII, rule 11, Cr. P. C. Do not apply to the memorandums of appeal. It is well established that if an insufficiently stamped memorandum of appeal is presented before a Court of Appeal, no proper appeal shall be deemed to have been filed. No doubt when an application under section 149, C. P. C. Is made and the Court extends time for the payment of deficient court- fee the memorandum of appeal would be validated retrospectively from the date on which it was filed in the Appellate Court, but, contrarily, if no application is filed under section 149, C. P. C. Or if filed the Court refuses to extend time, the document viz. Insufficiently stamped memorandum of appeal does not become a memorandum of appeal and is just a piece of paper. Appeal Reference in this respect may usefully he made to Ramzan and others v. Allay Diway-i and another (i). In the case in, hand, on the own showing of the appellants their memorandum of appeals are insufficiently stamped and consequently are not proper appeals. The question of time for making up deficiency in these appeals does not at all arise as the appellants have not even cared to make an application therefor and the oral request made at this stage does not at all merit consideration their conduct being, grossly negligent as already indicated above.
16. Though I am not called upon to deal with the submissions made on the merits of the appeals having decided to dismiss them by sustaining the preliminary objection raised on behalf of the respondents, I may point out that on the merits as well the appeals cannot succeed. The document Exh. P. 3 brought on record by the appellants themselves clearly shows that the tenancy of Mubarak and Feroz appellants in respect of Killas Nos. 20, 21 and 22 of Rectangle No, 325/13 and Killas Nos. 1, 2, 11 and 20 of Rectangle No, 325/14 was not joint but separate in respect of all killa numbers, Except No, 10 of Rectangle No, 325/14. The filing of the suit by both of them by excluding half share out of each killa numbers which formed the exclusive tenancy of each one of them did constitute a case of partial pre-emption. The findings of the Courts below on issue No, 3 in this view of the matter therefore are unexceptionable.
17. Before parting, I may also point out that the contention raised by the learned counsel for appellants that the learned District. Judge, Rahimyarkhan should have accepted the appeals and sent the cases to the Collector after the amendment in Martial Law Regulation No, 115 by addition of sub-paragraph (5) to paragraph 25 was brought about, is obviously fallacious. It was only the suits pending in civil Courts which stood transferred to the Court of the Collector after the amendment enforced on 19-5-1976. These suits having already been decided by the civil Courts were not covered by the amendment.
18. In view of the foregoing discussion, I find no merit in these appeals which are dismissed with costs.
(I) PLD 1953 B J 45