' ZIA MAHMOOD MIRZA, J.-This Regular First Appeal is directed against the judgment and decree of the learned Civil Judge, First Class, Lodhran, dated 12-2-1981 whereby suit of the respondent for possession through pre-emption was decreed on payment of Rs, 2 lacs.
2. Facts necessary for the disposal of this appeal, briefly stated, are that the suit land measuring 501 Kanals 1 Marla was purchased by appellants Nos. 1 and 2 for a consideration of Rs, 2 lacs vide.
Mutation No, 98, dated 16-2-1972. Two suits were brought to pre-empt this sale, one by Mst Balqees Begum respondent and the other by her rival preemptors Mst. Sajida Parveen etc. A portion of the suit land was subsequently sold by appellants Nos. 1 and 2 to appellant No, 3 who was, therefore, also included in the array of the defendants. Respondent valued her suit for the purpose of court- fee at Rs, 1,520.10 and fixed the jurisdictional value at Rs, 4,560.30.
' Both the suits were consolidated. Defendants contested the suits on numerous grounds which gave rise to as many as 21 issues. Learned trial Court vi .e judgment, dated 12-2-1981 dismissed the suit of Mst. Sajida Parveen etc. The rival pre-emptors of the respondent holding that they had "absolutely no preferential qualification qua the defendants-v, dees" but decreed the suit of Mst.
Balqees Begum respondent on payment of Rs, 2 lacs which she was directed to deposit before 1-3- 1981 failing which "her suit shall stand dismissed". Safe price of Rs, 2 lacs was conceded by the plaintiffs before the trial Court.
3. Appellants filed the first appeal against the impugned decree in this Court presumably for the reason that the decree for possession of the suit land had been passed on payment of Rs, 2 lacs which exceeded the pecuniary jurisdiction of District Judge.
4. Learned counsel for the respondent raised a preliminary objection that the appeal against the impugned decree is not competent in the. High Court. His precise submission was that the value of the suit for the purpose of jurisdiction was fixed at Rs, 4,560.30 which value is to form the basis for determining the forum for the appeal, irrespective of the amount on payment of which decree for possession was passed. Appeal in this case, according to learned counsel, should, therefore, have been filed before the District Judge. In support of his objection, learned counsel placed reliance on Mumtaz Begum v. Ch. Zulfiqar Ali (1) and Sadar Din v. Elahi Bakhsh and another (2).
5. Learned counsel for the appellants, on the other hair, contended that the forum for the appeal is determined not by the jurisdictional value of the suit but by the value of the subject-matter which in pre-emption cases is the sale price or the market value of the suit land. Learned counsel referred to section 18 of the West Pakistan Civil Courts Ordinance (II of 1962) relevant portion of which is reproduced hereunder:- "(1) Save as aforesaid, an appeal from a decree of order of a Civil' Judge, shall lie -
(a) to the High Court, if the value of the original suit in which the decree or order was made exceeds fifty thousand rupees ; and
(b) to the District Judge in any other case."
' Learned counsel also referred to clause (h) of section 2 of the said Ordinance which defines value as 'value' used with reference to a suit means the amount or value of the subject-matter of the suit". Learned counsel also placed reliance on Nazar Hussain v. Faqir Muhammad (3), for the proposition that the sale price of the land constitutes the value of the subject-matter of the suit for the purpose of determining the forum of appeal. He, therefore, argued that as the sale price of the suit land in the instant case was Rs, 2 lacs, appeal against the impugned decree was competent in this Court.
6. Question which emerges from the submissions of the learned counsel for the parties is whether the forum of appeal under section 18 of Punjab Civil Courts Ordinance is to be determined with reference to the jurisdictional value of the suit fixed under section 3 of the Suits Valuation Act and the Rules framed thereunder or on the basis of the sale price/market value of the suit land. This precise question was considered and decided in the two judgments relied upon by the learned counsel for the respondent. In 1960 Lah. 1088 which is a Division Bench judgment, jurisdiction of this Court to entertain a Regular First Appeal against the decree of the trial Court was questioned through a miscellaneons petition. In that case, jurisdictional value of the pre-emption suit was fixed at Rs, 234.25 and the decree for possession had been passed on payment of Rs, 8,000. At the relevant time, appeal in the suits value of which did not exceed Rs, 5,000 lay to the District Judge.
The learned Judges after reviewing the entire case-law on the subject held that in a suit for pre- emption, value for the purpose of jurisdiction was determined under section 3 of the Suits Valuation Act, 1887 read with rules 1 and 2 framed thereunder and that the value so determined "is essentially artificial in character and has no reference to the market value of the property in dispute". It was further held that in pre-emption suits, value for the purpose of jurisdiction does not depend on the amount on the payment of which decree is passed because the decree in such suits is essentially one for possession and the determination of the amount is subsidiary to the main purpose. It was, therefore, concluded 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
(1) PLD 1960 Lah. 1088 (2) PLD 1976 Lah, 1
(3) 1974 SCMR 188 the decree for pre-emption had been passed being for in excess of the pecuniary jurisdiction as so determined". Application of the respondent was, there fore, allowed and it was ordered that the appeal be returned to the appellant for presentation to the proper Court.
In PLD 1976 Lah. 1, first appeal filed directly in this Court against the judgment and decree of the trial Court passed in a pre-emption suit, jurisdictional value of which was Rs, l6,858.68 was held to be not competent and was returned for presentation to the competent Court. After examining the relevant provisions of Suits Valuation Act and section 18 of Punjab Civil Courts Ordinance, 1962 as also the definition of .'value' contained in section 2 (h) of the Ordinance, learned Judge held :- "The forum of the appeal is determined under section 18 of the Punjab 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 precise question came up for consideration in Iftikhar Ali and others v. Thakar Singh and another and it was held that the forum of appeal cannot be affected by the amount which the Court directs the preemptor to pay. The jurisdictional value of a suit relating to pre-emption in respect of agricultural land throughout the litigation remains the same. The same view was taken in Teja Singh v. Sundar Singh. In Jagdesh Ram v. Chinto and others it was held that in a pre-emption suit relating to land of which the value for purpose of jurisdiction under the Suits Valuation Act is less than Rs, 5,000 an appeal lies to District Judge and not to the High Court."
7. As regards the case relied upon by the learned counsel for the appellants, it may be observed that the question as has been raised in the present case was not raised as such before the Supreme Court with the result that no final pronouncement was made. Petitioner therein was a plaintiff in a pre-emption suit who being aggrieved with the framing of an additional issue filed a revision petition before the District Judge which revision petition was dismissed. He then tiled a second revision petition in the High Court which too was dismissed in limine by a learned Single Judge with the observation "that the value of the suit was only Rs, 150 for the purpose of jurisdiction and a second revision was not competent. Matter was then taken to the Supreme Court of Pakistan and it was submitted that the value of the subject-matter of the suit was Rs, 52,000 which was the sale price of the land and therefore, in terms of the amendment made in section 115(2), C. P. C.
Learned District Judge had no jurisdiction to entertain a revision petition. Their Lordships of the Supreme Court were pleased to observe that "it is correct that under the newly added subsection
(2) of section 115, C. P. C. The District Court has been authorised to exercise revisional powers in respect of cases in which the amount or value of the subject-matter does not exceed the limits of the appellate jurisdiction of that Court, viz. Rs, 25,000 at present, and, therefore, prima facie, the District Judge did not have the jurisdiction to entertain the petitioner's revision petition in view of the value of the land forming the subject matter of the suit". However, petition for Leave to Appeal was dismissed on the ground that the petitioner himself had invoked the revisional jurisdiction of the District Court and he could not, therefore, be permitted to contend that that Court had no jurisdiction.
It is quite clear from the observations quoted above that their Lordships only took a prima facie view of the matter and gave no final determination. Thus, a mere observation made in a leave- refusing order cannot be said to have altered the legal position settled in a string of rulings.
8. In view of what has been stated above, we uphold the objection) of the learned counsel for the respondent and hold that the appeal against', the impugned judgment and decree is not competent in this Court. It is,' therefore, ordered that the appeal be returned to the appellants for presentation to a competent Court. There will, however, be no order as to costs in the circumstances of the case.