' This second appeal is directed against the judgment and decree dated 10-10-1977 whereby the learned District Judge, Kasur accepted the appeal and decreed the suit of the pre-emptors- respondents on payment of Rs, 50,000 by a specified date.
2. The sale of 174 kanals, 12 marlas of land made by Suleman (vendor) in favour of Wazir Muhammad, Nazir Muhammad and Ghulam Rasool (vendees) was pre-empted by Abdul Aziz and Naik Muhammad (pre-emptors) respondents on the basis of their being collaterals of the vendor and owners of the estate in which the land in dispute was situate. The suit was resisted by the vendees mainly on the ground that the pre-emptors did not possess any superior right. The trial Court decided all the issues in favour of the pre-emptors but dismissed their suit on the ground that the sale being hit by para. 25 of the Martial Law Regulation 64 was not pre-emptible and that the suit was bad for partial pre-emption. On appeal to the learned District Judge the suit was decreed and it was held that the pre-emptors were desirous of stepping into the shoes of the vendees and of acquiring whatever rights the vendees had acquired in the property.
3. It was argued that the appeal was not competent before the learned District Judge because the value of the subject-matter of the suit was Rs, 50,000 as agreed to by the parties. This argument has ne force. Valuation of the suit for purposes of jurisdiction is fixed in accordance with the rules framed by the Provincial Government under section 3 of the Suits Valuation Act (VII of 1887) and the plaintiffs fixed it at Rs, 1,054.50 which was not seriously objected to in the written statement. This valuation unlike the valuation for purposes of court-fee remains unchanged and that was why no objection was ever raised before the learned District Judge by any of the parties. That being so, such an objection cannot be raised in second appeal.
4. The objection of partial pre-emption was not raised in the pleadings, nor was an issue framed in this behalf. It was, therefore, difficult for the parties to prove that the suit was bad for partial pre- emption. However it was not clear even from the contents of the plaint that the suit was in any manner defective. The sale related to an area of 174 kanals, 12 marlas situated in different khasra numbers and in case a few khasra numbers were by mistake omitted to be mentioned in the suit, it cannot be said that a particular area was excluded from being sued for. It may be a misdescription of the land and not an error of partial pre-emption. The learned District Judge was, therefore, justified in holding that even if some khasra numbers were no incorporated in the head note of the plaint, this fact was not fatal to the non-suit the pre-emptors so as to make their case that of partial pre-emption.
5. The objection that the pre-empted transaction was hit by Martial La Regulation 64 cannot be entertained unless it was raised in the pleadings and the parties were allowed to meet it by leading evidence. Pre-emption is the right of substitution and therefore the pre-emptors would be put in the same position as the vendees had acquired. However, the existence of sale is never denied by the vendees, and at least they cannot say that the sale was ineffective in any manner.
6. It is useless at this stage to contend that proper court-fee was not paid in the suit and the appeal. No serious objection was made in the trial Court and no such question arose before the District Judge. Such a plea cannot be allowed to be raised in second appeal. Issue No. 1 has s rightly been decided by the learned District Judge and that being a question of fact cannot be allowed to be raised in second appeal. The question whether the pre-emptor had a superior right has concurrently been decided by both the Courts. There is no reason made out why such findings of fact be interfered with at this stage. The sale cannot be deemed to be divisible between the vendees. No doubt, the shares of each vendee are separately specified but it is not shown that each one of them had paid his share of the price to the vendor separately. The learned District Judge is thus right in holding that the sale was indivisible and the vendees had under the doctrine of sinker reduced their status to that of a stranger by joining in the purchase Ghulam Rasool who was neither a collateral nor an owner of the estate.
' For the foregoing reasons there is no force in the appeal and the same is dismissed with costs throughout.