' ABDUL MAJID MALLICK, J.-These three appeals arise out of rival preemption suits, brought by Mst.
Sharaf Noor and Abdul Aziz Khan and others. As the appeals arise out of a single judgment of the High Court, dated 4-4-1981, and the points raised therein also being common and identical these are, therefore, disposed of by this single order.
2. Muhammad Yousaf Khan, appellant, purchased the suit property for a sum of Rs, 20,000 through registered sale-deed dated 19th December, 1970. Mst. Sharaf Noor, wife of the vendor, preempted the sale on the ground of relationship. A counter-suit of pre-emption was brought by Muhammad Sharif and others on the grounds of relationship with the vendor and as co-sharer in the suit property.. Both the suits were consolidated and a decree was passed on priority basis in favour of Mst. Sharaf Noor on 17th December, 1978, subject to payment of Rs, 20,000, the price of the property, in addition to Rs, 642, costs of the sale-deed. It was held that in case Mst. Sharaf Noor fails to deposit the amount within the stipulated period her suit shall stand dismissed and suit property shall stand decreed in favour of Muhammad Sharif and others subject to identical conditions.
Muhammad Sharif and others feeling dissatisfied with the decision of the trial Court went in appeal to the Additional District Judge. The appeal was partly accepted whereby the learned Additional District Judge granted pre-emption decree in favour of Mst. Sharaf Noor and Muhammad Sharif and others in equal share. This finding was challenged by the rival pre-emptors in the High Court.
During the pendency of the appeals Haji Muhammad Yousaf, vendee, also felt advised to file cross- objections. In cross-objections it was alleged that in both suits the pre-emptors failed to include `Shamilat Deh' in the suit property, hence both the suits were hit by the rule of partial pre-emption and liable to be dismissed. The learned Single Judge of the High Court in the light of the cross- objections felt persuaded to record additional evidence. The parties were also provided opportunity to lead evidence in support of their respective claims. The opportunity was availed of by the vendee only. On the basis of the additional evidence the claim asserted in the cross- objections was rejected. The learned Single Judge also modified the finding of the Addl. District Judge by allowing decree to the extent of 1/8th in favour of Mst. Sharaf Noor and 7/8th in favour of Abdul Aziz and others. It may be mentioned here that during the pendency of the proceedings in the High Court, Muhammad Sharif and Muhammad Siddique, co-plaintiffs, sought permission from the Court to withdraw from the proceedings and prayed that their names may be struck off and decree may be passed in favour of Abdul Aziz and others, pre-emptors. Their prayer was accepted and their names were deleted from the list of plaintiffs. Whereas Mst. Sharaf Noor claimed prior right of purchase on the sale ground of relationship. Abdul Aziz and others sought decree for possession on the ground of relationship with the vendor and also for their being co-sharer in the suit property. Their claim of being co-sharer was not found proved by all the Courts ; thus in both the pre-emption suits plaintiffs were allowed decree for possession by virtue of prior right of purchase on behalf of their relationship with the vendor.
3. The first objection raised by Sardar Muhammad Yasin Khan, the learned counsel for Haji Muhammad Yousaf, vendee, in that Said Ahmad Khan, vendor alienated the suit property including his right in `Shamilat Deh. In both the suits plaintiff-pre-emptors failed to include `Shamilat Deh', thus according to the learned counsel, the suits were hit by the doctrine of partial pre-emption. It may be stated here that the sale-deed does contain the recital of sale of trees and `Shamilat Deh' alongwith the alienated property. It is evident from the pleadings that in both suits the pre-emptors failed to include 'Shamilat Deh' in the suit property. The vendee appellant did not raise objection of partial pre-emption, in his written statement, in the trial Court. He also failed to raise this objection before the first appellate Court. The objection was raised for the first time in the High Court. In consequence thereof the learned Single Judge of the High Court felt persuaded to record additional evidence in order to ascertain as to whether there was any `Shamilat Deh' in the village and if so whether the vendee had any interest or share in it. In the light of the evidence the learned Single Judge overruled the objection and maintained that 'Shamilat Deb' in the village was not subject to alienation ; as such failure to include the same in the suit does not bring the suit within the scope of mischief of partial pre-emption.
4. A perusal of record of rights discloses that `Shamilat Deh' in village Ghori Ker where the suit property is situate, primarily comprises of graveyard. Village path and mosque. Out of this two Kanals and 13 Marlas is {{URDU TEXT}}" This land is shown in exclusive occupation and use of persons other than the vendor.
5. Sardar Muhammad Yasin Khan, the learned counsel for Haji Muhammad Yousaf, emphasised that survery Nos, 238 and 239 were irrigated by a `Kool' passing through survey No, 241. It was argued that survey No, 241 was `Shamilat Deh' ; as such failure on the part of the pre-emptors to include `Shamilat Deh' hits the suit by partial pre-emption. We have examined the case from this angle as well. It is true that according to the report of Patwari, who prepared the copy of the 'masavi{{URDU TEXT}} (c$91---.) survey Nos, 238 and 239 (part of the suit land) are shown to have been irrigated by water channel having its source in survey No, 241. But it is also shown in the record that survey No, 241 is not a part of the 'Shamilat Deh'. It is {{URDU TEXT}}ci-C4-4 .4" apparently Crown land. Thus the contention of the learned counsel is not supported by evidence. -
6. 'Shamilat Deh' used for mosque, graveyard and village path I obviously inalienable and non-pre- emptible. It is settled rule of law that right of pre-emption can be exercised against vested interest and right of the vendor in the alienated property. When the title or interest of vendor suffer from lack of title such property is not subject to pre-emption. Likewise, property exempted from operation of pre-emption, under the provision of Pre-emption Act, cannot be made subject of pre- emption. In the instan case the so-called 'Shamilat Deh' is shown to have been used for the pruposes of graveyard, mosque and village path. As the property was not subject to alienation failure to pre-empt the interest in `Shamilat Deh' alongwith the alienated property, in or view, does not bring the suit within the mischief of the partial pre-emption.
7. Our attention was invited to the case of "Muhammad Latif Khan and others v. Lal Khan and others" . In this case plaintiff-pre-emptors failed to sue for `Shamilat Deh' alongwith the suit land.
An objection was raised in the trial Court to the effect that the suit was not maintainable for failure to include the total property sold to the vendee. An issue was framed to that effect and consequently suit was dismissed. In that case the suit property and the parties hailed from Muzaffarabad, where `Shamilat' was reserved for the common use of the proprietor class of the village. It may be stated here that in Azad Kashmir the position of District Poonch in respect of the grant of 'Shamilat Deh' is altogether different from other Districts. In Poonch, Shamilat is available in very few villages and there too it is used for purposes, like mosque and graveyard. Of course the exception to this class is there. But unless it is proved in evidence that in a particular village `Shamilat' is B available and alienable the presumption is otherwise. It was for this reason that the learned Single Judge of the High Court adverted to record additional evidence to ascertain the question of status of Shamilat Deli'. We have no dispute with the dictum laid down in Muhammad Latif Khan's case but the fact remains that the nature and character of `Shamilat' in the instant case is distinguishable from the one in the afore cited case. In the circumstances, it would be wrong to hold that vendor was eligible to transfer any right in ' Shamilat Deh' and as such alienation of such right or interest was subject to pre-emption. The authority cited before us is obviously of no help to the appellant.
8. Another objection raised before us is that the learned Single Judge of the High Court was incompetent to record additional evidence ; rather he should have given his finding on the question of partial pre-emption on the basis of evidence already recorded by the trial Court. We are unable to entertain the objection. The fact of the matter is that the objection relating to partial pre-emption was raised for the first time in the High Court. This was a mixed question of fact and law. In absence of evidence the controversy could not be settled. Instead of remanding the case to the trial Court the learned Judge decided and rightly so, to record additional evidence by himself to settle the controversy. In or view this act of the learned Judge of the High Court has not caused any prejudice to the parties. It was wrong to suggest that vendee-appellant was not given opportunity to lead evidence in support of the objection. The file of the High Court reflects that parties were given ample opportunities to lead evidence and vendee-appellant produced copies of record of rights and the same were admitted in evidence. In absence of denial to the vendee- appellant to lead evidence, the act of recording additional evidence cannot be held prejudicial or unjust. Order XLI, rule 27, C. P. C. Empowers the appellate Court to record additional evidence to enable it to adjudicate effectively and conclusively. The jurisdiction conferred on the High Court has been exercised in this case. The objection is, there- fore, overruled.
9. The next objection pertains to pecuniary jurisdiction of the trial as well as the appellate Court. It was argued that pecuniary jurisdiction of the trial Court was up to Rs, 5,000 whereas the market value of the suit property was Rs, 20,000. Thus the trial Court was precluded to decide the suit.
Likewise the appellate jurisdiction of the District Judge being Rs, 25,000, at the relevant time, the first appeal lay to the High Court instead of the Additional District Judge. It was further contended that the second appeal filed in the High Court, if treated as first appeal against the judgment of the trial Court, was obviously beyond time.1
10. In pre-emption suit the pecuniary jurisdiction of Court for the purpose of court-fee is determined under section 7, clauses (v) and (vi) of the Court Fees Act and valuation for the purposes of pecuniary jurisdiction is settled under Suits Valuation Act and rules framed thereunder.
In the present case the point at issue pertains to the valuation of the suit for the purpose of pecuniary jurisdiction alone. Therefore, the controversy is to be settled in the light of the provisions of Suits Valuation Act and the rules. In Azad Jammu & Kashmir we have adapted the Suits Valuation Act along with the rules as enforced in Punjab, called the .Punjab Suits Valuation Rules, 1942. Section 3 of the Act empowers the Government to make rule determining the value of land for jurisdictional purposes. Section 11 of the Act provides that an objection of over-valuation or under- valuation of the suit or appeal shall be raised at the earliest date of hearing. Unless an objection was taken in the Court of first instance at or before the hearing at which issue was first framed, such an objection shall- not be entertained by an appellate Court. In the instant case objection to the pecuniary jurisdiction of the trial as well as the first appellate Court was not raised at the earliest opportunity. It is on record that such an objection was not raised even before the High Court. For the first time the objection was taken in the grounds of petition for leave to appeal, and leave was allowed to consider 194SC(A.1&K) the objection keeping in view the importance of other legal points raised the petition.
11. Rule 1 of the Suits Valuation Rules which is relevant for the settlement of the issue, is reproduced as under :- "1. Suits for possession of lands.-In suits for possession of land the value of the lands 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 permanenty thirty times such 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."
' Rule 2 provides that 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 rule.
12. In the instant case the suit land forms a definite share of the estate and is assessed to land revenue which is permanently settled and is ascertainable from the record of rights. In both the suits plaintiff-pre-emptors fixed land revenue at the rate of Rs, 3 and value of the house was given as Rs,
20. It is admitted by the parties in their pleadings that annual revenue of the suit land is Rs, 3.
Thus sixty times of the annual revenue comes to Rs,
180. The value of the suit for the purposes of jurisdiction was correctly fixed by the plaintiffs. By virtue of the aforesaid rate of the revenue, the trial Court was competent to entertain and try the suit. In addition to that it is also no record that defendant vendee admitted that value of the suit for the purpose-of jurisdiction, as fixed by the plaintiffs, was correct. In presence of admission on the part of vendee appellant as well as the factual position of the case, the objection raised by the learned counsel for the appellant loses its importance. It may be mentioned that market value of the suit property is made the basis in order to fix the pecuniary jurisdiction, only when the suit land is not found assessed to land revenue as contemplated under the aforementioned rules and clauses (v) and (vi) of section 7 of the Court Fees Act. The fact that the market value of the suit property is fixed as Rs, 20,000, is no con sideration to hold that the pecuniary jurisdiction of-the trial as well as the first appellate Court was controlled by the market value. In support of the aforesaid view reference may be made to Ghulam Hussain Shah v. Hidayatullah Khan and Suleman V. Khurshid .
13. Another point argued before us is that Muhammad Sharif and Muhammad Siddique, co- plaintiffs, in the rival suit had no right of pre. ' emption in presence of Ali Akbar, their father. Therefore, Abdul Aziz and others, possessed with superior right of pre-emption, by joining with them Muhammad Sharif and Muhammad Siddique as co-plaintiffs forfeited their such superior right. This common objection was raised in two appeals by Muhammad Yousaf, vendee, and Mst. Sharaf Noor, pre-emptor. It is already stated that in both the suits plaintiff-pre-emptors secured decree for possession in exercise of their right of pre-emption by virtue of their relationship with the vendor. In the second suit Muhammad Sharif, Muhammad Siddique and Abdul Aziz and others are admittedly nephews of the vendor. The relationship is also proved by pedigree-table Exh. P. B. Said Ahmed Khan, vendor, is real brother of Ali Akbar Khan and Said Alam Khan. Muhammad Sharif and Muhammad Siddique are sons of Ali Akbar Khan whereas Abdul Aziz Khan, Hidayatullah Khan, Muhammad Rafique Khan and Muhammad Yaqub Khan are sons of Said Alam Khan. It was disclosed in the evidence that Ali Akbar Khan is still alive, whereas Said Alam is dead. It was in the light of this state of affairs that it was thought by plaintiffs that in presence of Aii Akbar Khan, Muhammad Sharif and Muhammad Siddique (his sons) may not be found vested with the right of pre-emption. On this notion Muhammad Sharif and Muhammad Siddique applied before the High Court for permission to withdraw from the suit and appeal and prayed that decree may be passed in favour of Abdul Aziz Khan and others. In the circumstances their application was allowed and their names were struck out from the plaint and memorandum of appeal.
14. It is accepted by the learned counsel for the parties that relevan provision of law applicable to the case is section 14 (b) thirdly of the Right of Prior Purchase Act. Section 14 (b) clause thirdly provided that Right o Prior Purchase shall vest in the persons not included under firstly and second above in order of succession, who, but for such sale, would be on the death of the vendor entitled to inherit the land or property sold. On this premise of law, it is undenied that also the plaintiffs including Muhammad Sharif and Muhammad Siddique fall in the one class of heirs of the vendor.
The fact that Ali Akbar, father of Muhammad Sharif and Muhammad Siddique, is alive would not exclude them from claiming prior right of purchase unless such right was preferred by Ali Akbar himself. A close study of the aforesaid provision reflects that the statute provided the right of pre- emption to the whole line of successors of vendor. Of course the right of pre-emptors when they are more than one, is determined on the rule of inheritance. The nearer in relation would obviously exclude the remoter. But in case an heir, who is nearer in relation to the vendor, fails to exercise his right of pre-emption within the statutory time, a remoter in line shall not be deprived of exercising such right. In this case Ali Akhtar is definitely nearer in relation to the vendor, but his failure to exercise the right of pre-emption does not exclude his sons from exercising the right. This rule was settled in Nargis Begum and others v. Muhammad Ibrahim and another .
15. The rule of sinker or equitable acquiescence is based on the analog that where a pre-emptor purchases property joining with him a stranger in the purchase he loses his right of pre-emption by his act of acquiescence. On this analogy one of the views is that a plaintiff-pre-emptor by joining with him a stranger as co-plaintiff forfeits his prior right of purchase. The rule was propounded by a Full Bench of Calcutta High Court in case of Fakir Rawat v. Sheikh Emambaksh . It was followed by the Allahabad ' High Court wherein Bhawani Prasad's case Mr. Mahmood, Judge, elaborated his conclusion as under :-2 3 4 5 6 "The rule of law by which a person, entitled to pre-emption, forfeits his right is based upon the principles of equitable acquiescence, which forms one of the most important elements of restrictions imposed upon the vindictive or capricious exercise of the right of pre-emption. Those restrictions appertain to the very essence and nature of the right restrictions which, if ignored, would defeat the policy on which the right of pre-emption is based. A person who, whilst possessing the pre-emptive right, takes part in transacting the sale to a stranger, or who, in purchasing property himself, joins a stranger in such purchase, cannot, on the one hand, subsequently object to the sale which has with his acquiescence violated the pre-emptive not on the other hand, can he resist the claim of other pre-emptors who, in suing for pre-emption, vindicate the policy of the right. The rule is, that person cannot claim a right which he has himself violated, nor can he be allowed to complain of an injury in which he has himself acquiesced.
Applying these principles to the present case, it seems to us that the very fact that Damru, in suing for pre-emption, joined with him two other persons who had no such acquiescence in the sale estops him equity from complaining of the sale."
'This legal proposition again received attention of Mr. Justice Changez in .Raja and others v.
Hussain and others and by the Supreme Court of Pakistan in Mehr Allah Ditta and another v.
Muhammad Ali and another Mr. Justice Changez and the learned Judges of the Supreme Court of Pakistan on making critical analysis of the case law available on the point reached the conclusion in agreement to the view of the Chief Court of Punjab.
16. This point was also raised before us in Muhammad Ashraf and another v. Muhammad Khan and others, decided on 9-4-1983. In or estimation the view of the Chief Court of Punjab is well-founded.
In the instant case Muhammad Sharif and Muhammad Siddique possessed equal right with Abdul Aziz and others. They are not proved to have inferior or no right of prior purchase in the suit property. They stand in the parallel line of successors of the vendor with Abdul Aziz and others, plaintiffs. In case Muhammad Sharif and Muhammad Siddique were found strangers the suit cannot be dismissed on this ground in presence of their prayer for striking off their names from the list of plaintiffs. Order I, rule 10 read with section 107 (2), C. P. C. Empowers the appellate Court to add or to strik out the name of any party from the pleadings when it is not a necessary party. Here in the present case some of the plaintiffs volunteered to withdraw from the proceedings and prayed that their names may be struck out. The learned Judge of the High Court had no choice except to allow the prayer. The action of the learned Single Judge of the High Court is not violative of law.
17. Sh. Abdul Aziz, the learned counsel for Mst. Sharaf Noor, supported Sardar Muhammad Yasin Khan and argued that Abdul Aziz and others forfeited their right of prior purchase by joining Muhammad Sharif and Muhammad Siddique, co-plaintiffs, who had no right of prior purchase in the suit property. We have already answered this question in preceding paragraphs, therefore, the point is decided in the light of the given conclusion.
Kh. Muhammad Saeed, the learned counsel for Abdul Aziz and others, did not press the ground raised in the appeal. Likewise Sh. Abdul Aziz, the learned counsel for Mst. Sharaf Noor and others, did not press the stand taken in his memorandum of appeal, apart from the point mentioned above. In view of the observations made above we find no force in the objections raised against the impugned order to disagree with the learned Single Judge of the High Court. These appeals are, therefore, dismissed with costs.
PLD 1979 SC (A I & K) 123 PLD 1981 SC (A J & K) 55 1982 C L 2511 PLJ1982 SC(AJK)35 B L R F B Rut. 357 8 1 2 3 4 5