' KARRAR HUSSAIN ZAIDI, J.-This Civil Miscellaneous Petition bearing No, 5524 of 1979 presented in Regular First Appeal No, 211 of 1978 has been as gned to us for adjudication.
2. The present appellants had instituted a suit for possession through pre-emption on account of sale of some agricultural land as described in the plaint which was decreed by the trial Court on payment of Rs, 12,95,437.11 with costs with a direction to deposit the same into Court on or before 15-9-1978 in default whereof the suit shall stand dismissed with costs vide judgment and decree dated 29-6-1978. The plaintiff-appellants have come in regular first appeal which has been duly admitted to regular hearing by the Division Bench of this Court on 12-9-1978. The sole question involved in this appeal is the amount at which the claim of the appellants had been decreed. The appellants prayed that the sale consideration fixed by the trial Court as Rs, 12,95,437.11 be modified to Rs, 4,31, 812.31 through a reduction of Rs, 8,63,624.80. Despite the fact that the appellants valued their original plaint at Rs, 12,960 on the basis of thirty times of the annual land revenue assessed to the suit land, the first appeal was filed in this Court on the ground that the difference between the sale price fixed by the learned trial Court and the value of the suit land as proposed by the appellants which comes to Rs, 8,63,624.80 is the real subject-matter in the appeal and would determine the forum of appeal. As the aforesaid alleged subject-matter in appeal exceeded the pecuniary jurisdiction of the District Court, therefore the first appeal is competent before the High Court. The respondent through this Civil Miscellaneous has contested the jurisdiction of this Court to entertain this appeal and has requested that the preliminary point regarding the forum of appeal may be decided first.
' In order to resolve this controversia point the true spirit behind law is required to be seen and swa llowed. For the correct appreciation of this preliminary legal objection it would be advantageous to make a reference of relevant provisions of law which have a direct bearing on this subject and are as follows :- ' Section 7(v) and (vi) of the Court Fees Act as amended up-to-date read as under :- "Section 7(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 - (a)Where the subject-matter is land and where net profits have arisen from such land during the year next before the date of presenting the plaint fifteen times of such net profits : (b)Where the subject-matter is land and where no such profits have arisen therefrom market value of such land :
(c) Where the subject-matter is a house or garden according to the market value of the house or garden.
' Section 7(vi).-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.
' Sections 3, 4 and 8 of the Suits Valuation Act read as under :- "Section 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: Section 4.-Where a suit mentioned in the Court Fees Act, 1870 section 7, paragraph (vi), or Schedule II, Article 17, relates to land or an interest in land of which the value has been determined by rules under the last foregoing section, the amount at which for purposes of jurisdiction the relief sought in the suit is valued shall not exceed the value of the land or interest as determined by those rules.
' Section 8.-Where in suits other than those referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), paragraph (x), clause (d), court-fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same."
3. According to section 8 of the Suits Valuation Act, the suits enumerated in section 7, paras. (v) and (vi) of the Court Fees Act will not be valued at a similar valuation for the purposes of jurisdiction as well as computation of court-fees. In others words in such suits it will not be the court-fees valuation which will determine the jurisdiction value. As this section does not apply to suits falling under section 7, paras. (v), (vi), (ix) and para. (x), clause (d) of the Court Fees Act, for these suits special provision is made in section 3 of the Act which expressly lays down that if the subject-matter of any suit is land, then the value of such land for the purposes of jurisdiction must be made according to the Rules that may be framed by the Provincial Government in that behalf.
Thus if the possessory suit relates to land in respect of which the Provincial Government has made Rules under section 3 of the Suits Valuation Act, then under section 4 of the same Act, value of the suit for the purposes of jurisdiction cannot exceed the value of the land as determined by such Rules and undoubtedly suits for pre-emption A relating to land fall under section 7(v) by virtue of section 7(vi) of the Court Fees Act and as such are governed by section .3 of the Suits Valuation Act. Hence in such cases the value of the land for purposes of jurisdiction is to be determined in accordance with the rules, if any made by the provincial Government under the section. The following are the rules framed by the local Government under the power conferred by section 3 of the Suits Valuation Act, 1887 which were published in Punjab Government Notification No, 255 dated the 4th March, 1889, for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act, section 7, paras. (v), (vi) and para. (ix) clause (d)
"RULES
1. In suits for the possession of land the value of the land, for purposes of jurisdiction, shall be held to be as follows :-
(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 the annual revenue payable for such part is recorded in the Collector's register, and such revenue is permanently settled sixty times the revenue assessed on the land.
(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.
' Explanation to clause (b).-Where the land is a fractional share or a portion or part of an estate, and the land revenue payable for such part is recorded in the Collector's register, and such revenue is not permanently settled, the value, for purposes of jurisdiction, shall be held to be thirty times such portion of the revenue recorded in respect of that part as may be rateably payable in respect of the share or portion.
'Illustrations (1) In a suit for possession of a one-third share of the entire holding of ten ghumaons forming part of an estate, and recorded as paying Rs, 20 annual revenue, the value of the land, for the purposes of jurisdiction, is one-third of thirty times Rs, 20 or Rs, 60 ;
(2) In a suit for possession of one ghumaon out of the same holding the value of the land is one- tenth of thirty times Rs, 20 or Rs, 60.
(c) 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 market value.
(d)Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and does not come under clause (a), (b) or (c) of this rule,-the market-value of the land.
(e) Where the subject-matter is a garden,-the market value of the garden.
2. In suits to enforce a right of pre-emption in land the value of the land, for the purposes of jurisdiction, shall be calculated by the preceding rules.
3. When the land or interest in suits falls partly under one and partly under another, of the classes enumerated in rule 1, the value of the land in each class shall be separately calculated.
'1. In the application of the above rules the word "land" includes all such right, e. g., shares in village common and in wells as are accessory to the land in suit, and the word "revenue" as used in the preceding rules, when applied to land irrigated from canals, shall be held to include owner's rate for the year next before the date of presentation of plaint, or half the occupier's raiz for the same period in cases in which no owner's rate is chargeable.
5. In suits for specific performance of an award so far as the award relates to land,-the market value of the land.
6. Suit relating to a life-interest in land and suits relating to an occupancy right shall, for purposes of jurisdiction, be neemed to be half of the value provided for suits for possession under rule 1."
4. Undeniably we are dealing with a pre-emption suit pertaining to some agricultural land assessed to a fixed land revenue but not settled permanently i. e. Subject to change during settlement operations. According to rule 2 (supra) in suits to enforce a right of pre-emption in land, the value of land for the purposes of jurisdiction shall be calculated by the preceding rules i. e. Rule
1. Thus in suits falling under section 7 (v) and (vi) of the Court Fees Act where the suit land is assessed to land revenue which is fixed but not permanently, according to rule 1 (b) and explanation appended to clause (b) the value for purposes of jurisdiction shall be calculated at thirty times of such annual land revenue and therefore the jurisdiction value mentioned in the original plaint in the present proceedings seems to have been calculated in accordance with this rule. It is thus obvious that the appellate forum in a suit for pre-emption regarding land depends on the value of the land as determined by the rules and not on the amount which is held by the decree to be payable as pre-emption money or the value of the property as found by the Court.
This view further gets support from the view taken by the Division Bench of this Court in Mumtaz Begum v. Ch. Zulfiqar Ali (1) wherein the basic Full Bench Authority namely Muhammad Afzal Khan v. Nand Lal (2) was not followed with the following observation :- "We are really not called upon in the present case to decide whether the Full Bench case of Muhammad Afzal Khan v. Nand Lal was correctly decided. The case before us is one of appeal. With utmost respect, however we have no hesitation in expressing the view that the soundness of reasoning in the Full Bench Case is open to very grave doubts, and is based on the obvious disinclination of the learned Judges to give effect to the clear provisions of the law which bear on the subject. We will accordingly, hold that in suits for pre-emption the jurisdictional value of the appeal remains as determined under the Suits Valuation Act and the rules framed thereunder notwithstanding the amount on the payment of which the decree for preemption had been passed being far in excess of the pecuniary jurisdiction as so determined."
5. The contention of the learned counsel for the appellants is that the appeal has been valued at Rs, 8,63,624.80 i. e. The difference between the fixed price and the proposed price for the purposes of court-fees and therefore the same would be jurisdictional value to determine the forum of appeal and as such the appeal has been rightly filed in the High Court which is a proper forum.
According to him it is the difference of price and not the suit land which forms the subect-matter of the present appeal. In support of his contention he has placed reliance on the following case-law :-
(i) Ahmad Bakhsh and others v. Khurshid Akbar Khan and others PLD 1978 Lah.
838.
(ii) Abdul Ghani v. Ghulam Sar war PLD 1977 SC 104.
(iii) Waryam Singh v. Mahtab Singh and others (1913) 76 P R 273
(iv) Suba Khan v. Rehmat Din and 2 others 1980 CLC 589.
6. The case-law cited by the learned counsel for the appellants does not relate to the present matter in controversy at all. In Waryam Singh v. Mahtab Singh and others there was a dispute regarding the computation of value for the purposes of court-fees and not for jurisdiction. In that case it was held that when the dispute raised by the appeal relates solely to the amount to be paid by the pre-emptor, it is the amount in dispute that will determine the value of the appeal for purposes of court-fees. This authority
(1) PLD 1960 Lah. 1088 (2) 16 P R 1908 does not help the appellants in any respect. On the basis of this ruling, the learned counsel for the appellants actually wants us to hold that the valuation of court-fees will also determine the jurisdictional value in this appeal. We are unable to subscribe to the view of the learned counsel of the appellants as to hold likewise will amount to a complete negation of aforesaid statutory provisions governing the determination of jurisdictional valuation in suits falling under section 7 (v) and (vi) of Court Fees Act. As stated earlier the pith and substance of the provisions of law referred to above is that in suits referred therein it is not the court-fee value which determines the jurisdiction value.
' Undoubtedly the present dispute relating to the fixation of price has arisen out of a pre-emption suit and the same cannot be considered independent of it and hence it clearly falls under section 7
(v) and (vi) of the Court Fees Act. As no similar question came for consideration either before the learned Single Judge of this Court in Ahmad Bakhsh and another v. Khurshid Akbar Khan and 2 others (I) or the Supreme Court in Abdul Ghani v. Ghulam Sarwar (2) therefore both the authorities are not relevant for the decision of the point in question.
7. The learned counsel for the appellants further gave much emphasis on section 18(i) of West Pakistan Civil Courts Ordinance, 1962 and halfheartedly tried to press it into service in support of his plea. It, as amended upto-date, provides that an appeal from the decree or order of the Civil Judge will lie to the High Court if the value of the original suit in which the decree or Order was made exceeds fifty thousand rupees. For further elucidation he made a reference of section 2 of the Ordinance which defines that the term 'value' used with reference to a suit means the amount or value of the subject-matter of the suit. On the basis of this proposition of law he submitted that Rs, 8,63,624.80 should be treated as the amount of the subject-matter for the purposes of jurisdiction in appeal. We are afraid this contention has no legs to stand upon because the value as defined in clause (h) of section 2 of the Ordinance means the amount or value of the subject-matter of the suit. Evidently the forum of appeal is to be decided according to the value of the suit mentioned in the plaint which is thirty times of the annual land revenue assessed to the suit land. Undisputedly Rs, 8,63,624.80 had never been the subject matter of the original suit and as such the same cannot be treated to be the subject-matter of appeal by any canon of interpretation. This point came for consideration before the learned Single Judge of this Court in Sadar Din v. Elahi Bakhsh and another (3) and it was held as under :- "The forum of appeal is determined under section 18 of the West Pakistan Civil Courts Ordinance, 1962, and it does not lay anywhere that the forum 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 jurisdictional value of a suit relating to pre-emption in respect of agricultural land throughout the litigation remains the same."
' A similar interpretation to section 18 (supra) was also made by the
(1) PLD 1978 Lab. 838 (2) PLD 1977 SC 102
(3) PLD 1976 Lab. 1 sion Bench of West Pakistan High Court at Peshawar in Muqarrab Khan v. Muhammad Anwar Khan and 10 others (1) where following the rule laid down in Mst. Mumtaz Begum v. Ch. Zulfiqar All (2) it was affirmed as under :- "We therefore answer the first question under reference in the following manner :- ' That in determining the forum of appeal in land suit or interest in the land for purposes of section 18 of the Ordinance the determining factor would be the value of the original suit determined under the rules framed under section 3 of the Suits Valuation Act for the purposes of jurisdiction, and not the market value of the subject-matter of the suit. The view expressed by the Single Judge in answering the reference in Mst. Mahallah's case is therefore overruled."
8. Thus the "value of a suit" for the purposes of jurisdiction is determined by the valuation in the plaint, unless, by fraud or misrepresentation, the plaintiff deliberately overvalues or undervalues the claim for the purpose of choosing his form. It is the true value of the suit at which plaint ought to have been valued that will represent the "value of the suit". Hence such value of plaint must be value of appeal. The appellate forum in a suit for preemption involving land will be governed by the value of the land as determined under the rules framed by the provincial Government under section 3 of the Suits Valuation Act, 1887 (Act No, VII of 1887) i. e. The thirty times of the revenue payable on land and not by the amount of pre-emption price decreed by the Court.
9. The upshot of the above discussion is that this petition is allowed and it is hereby directed that the appeal be returned to the appellants for presentation to a proper Court. No, order as to costs.
(1) PLD 1964 Pesh. 228 (2) PLD 1960 Lah. 1088