' C.A. RAHMAN, J.--Muhammad Walayat Khan appellant instituted a suit on 25-11-1975 to pre-empt the sale of land measuring 162 Kanals 2 Marlas situated in village Naurozpur, Tehsil Hafizabad, District Gujranwala, effected by Aamer Hayat through his attorney Raj Muhammad for an ostensible price of Rs.90,000, by means of mutation of sale, dated 1-12-1974 in favour of the respondents, claiming superior right of pre-emption on the ground of being a co-sharer in the joint Khata, out of which the land was sold and also owner of the estate, in which the land in question was situated. He pleaded that the land in question had in fact been sold for Rs.80,000, by the vendor and that the price of Rs.90,000 as mentioned in the mutation, was fictitious and was incorporated to defeat his right of pre-emption. The respondents contested the suit. They denied the appellant's right of pre-emption and controverted his allegations that the land was purchased by them for Rs.80,000, only and the price of Rs.90,000 entered in the sale-deed was fictitious. The respondents contended that after the sale they had spent a sum of Rs.7,000, for levelling the suit land making it culturable. They also claimed to have spent Rs.40,000, on the construction of a house over the suit land. According to them the suit was filed by the appellant without payment of proper court-fee and was barred by time. Even otherwise, the appellant was estopped by his conduct to file the pre-emption suit. The pleadings of the parties gave rise to the following issues:--
(1) Whether the plaintiff has superior right of pre-emption to the defendants-vendees? O.P.P.
(2) Whether the plaintiff is estopped to file this suit by his own conduct and words? O.P.D.
(3) Whether the suit is barred by time? O.P.D.
(4) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, its effect? O.P.D.
(5) Whether the defendants have made improvements over the suit land, if so, when and to what extent and with what effect? 0 . P . D .
(6) Whether the sale price of Rs.90,000, was fixed in good faith or actually paid? O.P.D.
(7) If issue No. 6 is not proved what was the market value of the suit land at the time of sale? O.P.P.
2. Learned trial Court after recording the evidence of the parties and hearing the arguments of their counsel decided issues No. 1 and 2 in favour of the appellant and issues No. 3 and 4 in favour of the respondents. While deciding issue No. 3 in favour of the respondents the learned trial Court refused to allow opportunity to the appellant to make up the deficiency in court-fee. Under issue No. 5 the learned trial Court held that the respondents had spent a sum of Rs.11,15,300 on the improvements made in the suit land before the institution of the suit and another sum of Rs.2,280, for the purpose after the filing of the suit. As the appellant accepted price of the suit land as Rs.90,000, issue No. 6 was decided in respondent's favour, while issue No. 7 was left undecided. As a result of the findings on issues No. 3 and 4 the appellant's suit was dismissed on 25-11-1980. The appellant has now come up in appeal in this Court against the judgment and decree of the learned trial Court.
3. Learned counsel for the appellant has assailed the finding of the learned trial Court on issue No.
3. He has contended that the evidence produced by the respondents in support of their contention that they had acquired the possession of the disputed land on 4th November, 1974, prior to the attestation of mutation of sale is neither reliable nor convincing and the learned trial Court has failed to notice that the oral evidence adduced by the respondent is inconsistent with the entries in the Khasra Girdawari. He has further stated that the suit land is a part of undivided share in a joint Khata and as such was not capable of physical possession. In this connection he has referred to Maula Bakhsh v. Qadir Dad, PLD 1953 B J 52.
4. Learned counsel for the respondents, on the other hand, has submitted that the appellant's contention that he was cultivating the land in dispute as a tenant at the time of sale which took place on 4-11-1974 is not supported by the entries in the Khasra Girdawari. A part of the land in question was under cultivation and Ghulam Ali (D.W.2) and one Ahmad Jug, who had sown paddy in an area of 21 Acres had received Rs.2,450 as compensation and in consideration thereof had surrendered the possession of the land to the respondents.
5. We have considered the arguments of the learned counsel for the parties and have also perused the record. The respondents have relied on the report, dated 4-11-1974 recorded by the Patwari in his Roznamcha, wherein it is stated that Aamer Hayat son of Ahmad Sher has stated that he has sold his land measuring 162 Kanals 2 Marlas to the respondents for Rs.90,000 and that after receiving the said amount he has delivered the possession of the land to them. The respondents have also examined Ghulam Ali (D.W.2) and Bashir Ahmad (D.W.3) who have stated that the bargain of sale of the land in question was struck in their presence and that immediately thereafter the sale price was paid by the respondents and the possession of the land was obtained by them.
Abdul Majid respondent has also appeared as D.W.1 to state that the mutation of sale was sanctioned after one month of the sale of the suit land and that the possession of the land purchased by them was obtained on the same day when the bargain of sale was settled. As against the above evidence the appellant has produced copy of Khasra Girdawari (P.7) to show that he was in cultivating possession of the suit land during Kharif 1974 and Rabi 1975. He has also tendered in evidence copy of order, dated 712-1979 (Exh. P.6) whereby the respondents' appeal against the Collector's order, dated 28-5-1978 dismissing their petition for correction of entries of Khasra Girdawari for the period Kharif 1974 to Rabi 1975 in respect of the suit land was dismissed.
The appellant has also appeared as P.W.1 and has stated that he was in cultivating possession of the suit land at the time of its sale, and that after six months of the sale he had delivered the possession to the vendees when he was required to do so by Raj Muhammad.
6. It is an admitted fact that in a part of the suit land paddy crop was standing on 3-11-1974 when the respondents allegedly purchased the suit land. According to the respondents they paid Rs.2,450 to Ghulam All and Ahmad Jug by way of compensation for the aforementioned crop, which they had sown. Abdul Majid respondent has stated that after payment of compensation a receipt was also obtained, which, however, has not been produced by the respondents in Court.
Ghulam Ali (D.W.2), on the other hand, has deposed that no such receipt was executed. Apart from this glaring inconsistency in the statements of Abdul Majid and Ghulam Ali the entries in the Khasra Girdawari, copy Exh. D-1, produced by the respondents do not support the respondent's case because neither Ghulam Ali (D.W.2) nor Ahmad Jug have been shown as tenants in possession of the land in which paddy crop was sown in Kharif 1974. According to the entries in the Khasra Girdawari the appellant has been shown to be in possession of the land as tenant. The fact that the aforementioned entries were made in compliance with the order, dated 28-5-1978 passed by the Collector, Gujranwala, which was upheld in appeal by the Additional Commissioner on 7-2-1979 vide order copy Exh.P.6 is immaterial because even if it be assumed that the appellant had not sown the paddy crop during Kharif 1974 and that his name as tenant appears in the Khasra Girdawari merely on the basis of the order passed by the Revenue Officer long after the inspection of Kharif crop was carried out, the respondent's contention that they had obtained the possession of the land from the person, who had sown the paddy crop after payment of compensation remains unsubstantiated because the persons to whom compensation was allegedly paid by them have not been shown as tenants in possession of the land at the relevant time.
7. It is a well established rule of law that for bringing a pre-emption suit within the purview of the last part of subsection (1) of section 30 of the Punjab Pre-emption Act, 1913, where the period of limitation is calculated from the date on which the vendee takes under the sale physical possession of the property, it must be established by cogent evidence that the vendee had obtained the physical possession of the property subject-matter of the pre-emption suit.
Reference in this connection may be made to the following observations in the case of Thakur Singh v. Karam Singh and another AIR 1925 Lah. 165:-- "The law insists on physical possession, because physical posses sion is visible to all concerned. It is a notice to all would-be pre-emptors that the change had occurred in the enjoyment and possession of the land in question and put them to enquire whether there has been a sale. The mere reporting to the Patwari that the vendor has relinquished possession and that the vendee has assumed possession in no proof that there was a giving and taking of physical possession within the meaning Of section 30 of the Pre-emption Act."
8. As to whether the suit land, which was admittedly in possession of the tenant on the date of sale, was susceptible of physical possession also requires consideration. Undoubtedly the suit land was not lying vacant on 4-41-1974, when according to the respondents the bargain of sale was settled.
A part of the land was under paddy crop, which had been sown by the tenant. In such a situation the delivery of physical possession for the purpose of determining the period of limitation under section 30(1) of the Punjab Pre-emption Act 1913 was not possible because it could not be said that any change had occurred in the enjoyment and possession of the land so as to amount to a notice to the would-be pre-emptors. It was held in Ganwa and another v. Joti Prasad and others AIR 1924 Lah. 302, that the property in possession of a tenant does not admit of physical possession within the meaning of Article 10 of Limitation Act, which also inter alia provides that where the possession of the property sold has been delivered to the vendee, the period of limitation for filing a pre- emption suit shall be computed from the date of delivery of possession. It was observed:-- "Whether the subject of the sale does or does not admit of physical possession must be determined with reference to the date of the sale and it is immaterial whether the property afterwards became susceptible of physical possession. The date of the sale is the crucial date for deciding whether the first part of the article governs the action and it is common ground that on that date the property in question was in the possession of tenants."
' The decision in the case of Raja Maula Bakhsh v. Qadir Dad PLD 1953 B J 52, referred to by the learned counsel for the appellant that where only a part of land out of joint Khata has been sold, such land is not capable of physical possession is not applicable to the facts of the present case because the suit land, though being an undivided share in the joint Khata, was not in the joint possession of all the co-sharers. On the other hand Aamer Hayat, who sold his share in the joint Khata was constructively in possession of the land in question and as such it could not be said that the suit land was not capable of physical possession.
9. In view of the above facts and considerations we have no doubt in our mind that the period of limitation in the present case is to be computed from the date of attestation of the mutation as the respondents A had not obtained the possession of the suit land before the said date as contended by them. The finding of the learned trial Court under issue No. 3 is accordingly reversed.
10. Learned counsel for the appellant has questioned the order of the learned trial Court dismissing the appellant's suit on account of non-payment of requisite court-fee on the plaint because under law the learned trial Court could only reject the plaint under Order VII, rule 11, C.P.C. on the appellant's failure to make-up deficiency in court-fee within the time fixed by the Court. The provisions of section 10 of the Court-Fee Act, under which the appellant's suit could be dismissed by the Court, were not attracted to the facts of the case as the Court had not fixed any time within which the appellant had to pay the deficient court-fee.
11. The valuation of the suit for purposes of court-fee was fixed at Rs.24,300 by the appellant being 15 times the annual net profits arising from the land next before the date of filing of the suit in accordance with the provisions of section 7(v)(c) of the Court Fees Act. The respondents questioned the aforementioned valuation in their written statement. No evidence, however, was produced by the respondents to show that the valuation of the suit for purposes of court-fee and jurisdiction was incorrect. The appellant had placed on file statement of annual net profits, which they had got prepared by the Office Qanungo. He, however, did not formally tender it in evidence probably on the assumption that the onus to prove that the valuation of the suit for purposes of court-fee and jurisdiction was incorrect was on the respondents, which they had failed to discharge. During the course of arguments the attention of the learned trial Court was drawn to the aforementioned statement of annual net profits whereupon the Office Qanungo, who had prepared the statement, was summoned as a Court witness. The statement of annual net profits filed by the appellant was not found in order and so the Office Qanungo was directed to prepare a correct statement of annual net profits. Exh. C.1/1 a revised statement of annual net profits was accordingly submitted by the Office Qanungo. The correctness of the revised statement of annual net profits was also disputed by the respondents' counsel. After hearing the arguments of the parties' counsel the learned trial Court found that the proper annual net profits of the suit land during the relevant period should have been fixed at Rs.5,680.30 and the appellant should have fixed the valuation for purposes of court-fee at Rs.85,204.50 being 15 times of the aforementioned net profits. The learned trial Court, however, refused to allow opportunity to the appellant to make- up deficiency in court-fee on the ground of his failure to pay proper court-fee on the plaint at the initial stage and his subsequent conduct during the pendency of the suit after the respondents had raised objection regarding the court-fee paid by him by making no effort to pay the deficient court-fee. The view taken by the learned trial Court is manifestly contrary to the law laid down by the Supreme Court in Siddique Khan v. Abdul Shakoor Khan PLD 1984 SC 289, where after considering all the relevant provisions of law and the case law on the subject it was laid down that it was obligatory to afford one opportunity to supply the deficiency in court-fee before the plaint could be rejected under Order VII, rule 11(c), C.P.C. and that the rejection of a plaint without granting opportunity to the plaintiff to make up deficient court-fee was not lawful. Although in the present case the learned trial Court did not specifically mention rejection of the plaint under Order VII, rule 11, C.P.C. the dismissal of the appellant's suit due to non-payment of proper court-fee on the plaint will have to be construed as rejection of plaint, to which the rule of law laid down by the Supreme Court in the case noticed above would be applicable. But, even if the order of dismissal of the suit is not construed as an order of rejection of plaint under Order VII, rule 11, C.P.C. and it is considered as an order under section 10 of the Court Fees Act, the result would not be different because even under the last mentioned provisions of the Court Fees Act it was incumbent upon the trial Court to call upon the appellant to pay the deficient court-fee and his suit could be dismissed only if he had failed to make--up the deficiency in court-fee within the time fixed by the Court. In view of provisions of Order VII, rule 11, C.P.C. and section 10 of the Court Fees Act it was obligatory for the learned trial Court to have allowed opportunity to the appellant to pay the deficient court-fee. The order of dismissal of the appellant's suit on the ground of non-payment of proper court-fee by him is, therefore, not legally sustainable.
' As a result of what has been stated above we accept this appeal and set aside the judgment and decree of the learned trial Court. The appellant's suit for possession of the disputed land through pre-emption is decreed on payment of Rs.90,000 the sale price and Rs.11,153 spent by the respondents on the improvements made by them in the suit land after the sale and before the institution of the suit. The respondents are not entitled to recover the amount of Rs.2,280 spent by them on the improvements after the institution of the suit. The appellant after adjusting the amount of 1/5th of the purchase money already deposited by him in Court as acquired shall pay in the Court, the aforementioned purchase money alongwith the amount of Rs.11,153 on or before 7-3- 1985 failing which his suit shall stand dismissed. The appellant shall also pay the deficient Court- fee on the basis of valuation determined by the learned trial Court within one month from the date of the decision of this appeal otherwise his suit shall stand dismissed under section 10 of the Court Fees Act. In the event of decree the appellant shall also be entitled to the costs.