1. ' The respondent filed a suit before the Civil Judge, Dadu alleging that the property mentioned in the Schedule A to the plaint originally belonged to Makhdoom Muhammad Ahmed Siddiqui who left the respondent and appellant Mst. Bibi Rahim Dini as his legal heirs. The property remained in joint possession of the heirs when on 16-9-1951 private partition was effect and such statement was recorded before the Mukhtiarkar on 25-1-1952 and approved by the Deputy Commissioner on 21-7- 1955. The appellants Nos.1 and 2 received possession of their shares of the property which was specified in Schedule 'B' to the plaint and rest of the property remained in joint possession of the appellants Nos. 3 to 7, the respondent and Mst. Bibi Rahim Dini. It was also alleged that the appellants Nos.1 and 2 got their share of 0/4/4 being their legal share and the rest of the property namely 0/11/8 remained with other remaining heirs who continued to be in possession and enjoyment thereof. Mst. Rahim Dini died 10 or 12 years before the suit was filed and her share (0-3-0 annas) remained with her daughter Bibi Zinatunissa and after her death it was distributed among the respondent and appellants according to the Muslim Law and the parties are in joint possession thereof. The properties in such joint possession of the parties to the extent of 0/11/8 share of the total property is specified in Schedule 'C' to the plaint. Schedule 'D' specified the properties like residential house and plot inherited by the parties from Mukhdum Muhammad Ahmed at the time of private partition and property mentioned in Schedule 'E' was given in exclusive possession and ownership of the appellants Nos.1 and 2. The rest of the property is not in joint possession of the parties except the appellants Nos.1 and 2. There seems to be dispute between the parties regarding produce of the crops which resulted in proceeding under section 145, Cr.P.C.
2. ' The respondent alleged that the value of his share in Rabi Crop 1964-65 -4 comes to Rs,2,500. It was prayed that properties mentioned in Schedules 'C' and 'D' be partitioned and 0/2/11 share from the property may be given separately to him and mesne profit may also be granted. The appellant denied the private partition and was alleged that the property mentionend in Schedule 'B' were not given as complete share of the appellants. Nos. 1 and 2 but were given to them for providing maintenance. The respondent was supervising and managing the property as appellant No,3 was student and appellants Nos.2 to 4 are Pardanashin ladies and nothing was paid to them by the respondent who is the elder son of Makhdum Muhammad Ahmed and took undue advantage. It was further pleaded that he has sold the property and misappropriated jewellry and constructed a bungalow at Karachi. They claimed share in the said bungalow. In para. 9 of the written statement it was pleaded that the valuation of the produce of Rabi crop in the eyar 1964-65 is not correct, the Court has no jurisdiction to hear the suit, suit is barred and proper court-fee has not been paid. The learned trial Court framed 13 issues which are as follows:- "(1) What are the respective shares of the parties in suit property?
(2) Whether parties partitioned the property in 1952 and it was sanctioned by the Deputy Commissioner, Dadu?
(3) Whether averments in paras. Nos. 4, 5 and 6 of the plaint are true?
(4) Whether averments in paras. Nos. 4, 5 and 6 of written statement are true.
(5) Whether defendants Nos. 1 and 2 forcibly removed share of plaintiff of Rabi 1964-65 of suit land?
3. If yes, to what extent.
(6) Whether plaintiff is in possession of any share of property in suit?
(7) Whether plaintiff has not shown all the property liable to be affected in present suit?
(8) Whether plaintiff is entilted to partition and separate possesison of any share in suit property.
(9) Is the suit maintainable in present form.
(10) Is the suit property valued and stamped.
(11) Whether the suit is time-barred.
(12) Whether this Court is not competent to hear this suit?
(13) What should the decree be?"
4. ' The suit was decreed with cost and a preliminary decree was passed for partition of house and settlement of account and mesne profit. The respondent filed an appeal and the learned First Appellate Court considered issues Nos.10 and 12 and remanded the case for recording further evidence and finding on these issues. On the basis of the additional evidence recorded, the Trial Court by its judgment, dated 27-2-1971 held that the valuation of the share of the respondent is beyond the pecuniary jurisdiction of the Trial Court. The learned Appellate Court ordered for additional evidence of S.D.O. Building who has valued the urban property at Rs,94,000.23, which was accepted by it. In this background the learned Court heard the arguments again and observed in the impugned judgment that the learned counsel addressed only on issues Nos.10 and 12 and other issues were not raised or argued by them. The learned Appellate Court came to the conclusion that in view of section 11 of the Suits Valuation Act no prejudice has been caused to the appellants and therefore, on question of jurisdiction the plaint cannot be rejected or suit cannot be dismissed. The appeal was, therefore, dismissed.
5. ' Mr. Kishanchand the learned counsel for the appellant has contended that as the learned Trial Court as well as First Appellate Court had come to the conclusion that the value of respondent's share in joint property was more than the pecuniary jurisdiction' of the Trial Court, the plaint should have been rejected or dismissed and the judgment passed by the learned Trial Court was without jurisdiction and illegal. The learned First Appellate Court has taken note of the fact that no specific plea challenging the pecuniary jurisdiction of the Court was raised in the written statement. A perusal of the written statement will show that although the objection to jurisdiction was taken, it was too vague to be taken into consideration. By mere saying that the. Court has no jurisdiction, one cannot be expected to make roving inquiries as to how the Court has no jurisdiction. The learned appellate Court also came to the conclusion that no evidence was led to establish the value of the property or to show that it was beyond the pecuniary jurisdiction of the Trial Court. So far the court-fee is concerned it was stated that the amount regarding mesne profit is not correct.
6. If issue No,10 related to valuation of the property and payment of proper court-fee the appellants did not lead any evidence before the Trial Court for proving the valuation. It was only produced when the case was remanded by the First Appellate Court. As regards issue No,12 nothing has specifically been pleaded and the issue had been framed on the basis of vague pleading. It is the duty of the parties upon whom the burden lies to discharge it. At least before the Trial Court the appellant had remained completely unconcerned with these issues. The plea seems to have been agitated during the appeal and specific finding was given on the valuation of the property and pecuniary jurisdiction of the Trial Court. The question, therefore, is whether in these circumstances the decree could be set aside on the ground that the learned Trial Court did not have the pecuniary jurisdiction.
7. ' Mr. Abdul Fateh Memon the learned counsel for the respondent has contended that as the appellant has not raised any specific issue regarding lack of pecuniary jurisdiction of the Trial Court and judgments have been passed by two Courts below and in particular the judgment passed by the first appellate Court which has held that no prejudice has been caused to the appellant in view of section 11 of the Suit Valuation Act, the decree cannot be set aside. The learned counsel has referred to Gul Khan v. Syed Hasin Shah and another PLD 1968 Pesh. _ 148 and Mst.
8. Habib and another v. Abdul Qadir and 2 others PLD 1985 Kar.
18. On the other hand Mr. Kishanchand has placed reliance on Muhammad Siddique and another v.
9. Haji Ahmed & Co. PLD 1967 Kar.
468. The facts of this case were completely different and distinguishable. There an ex parte decree for Rs, 1,75,500 with interest was passed by the High Court. The application under Order IX, Rule 13, C.P.C. Was dismissed and letters patent appeal was compromised. The appellant filed suit before the Civil Judge 1st Class for setting aside the decree as it was obtained by fraud and the Letters Patent Appeal was got compromised fraudulently. The plaint was returned and appeal against that order was dismissed. The Revision Application filed was also dismissed. The appellant then filed a second suit before the Civil Judge First Class for declaration which was dismissed as the same was barred by res judicata. Against this order Civil Appeal was filed before the Additional.
10. District Judge who granted in injunction restraining the respondent from executing the decree which was pending before the learned Single Judge for execution. The order of the learned Single Judge was attacked before the learned Bench on the ground that the sale of the attached Mill should not have been ordered after the injunction had been issued by a civil Court of competent jurisdiction. In these facts, it was observed that "the learned Additional District Judge having no jurisdiction in the matter any order passed by him is without jurisdiction and is void in law. There the applicability of section 11 of the Suits Valuation Act was neither raised nor considered.
11. ' In Gul Khan's case PLD 1968 Pesh. 148 question as in the present appeal came up for consideration. There specific plea was taken that the plaint was not properly valued for the purposes of court-fee and jurisdiction and a specific issue namely, whether the suit was properly valued for purposes of court-fee and jurisdiction was also framed. The Trial Court came to the conclusion that proper court-fee has been paid and decreed the suit. The finding of learned Trial Court was upheld, by the learned Additional District Judge. In second appeal before the High Court the same question regarding court-fee and jurisdiction was again agitated. After examining several authorities it was held:- "The combined effect of sections 12 and 28 of the Court Fees Act is that if indeed there is any deficiency in the court-fee leviable in this suit it can be ordered to be made good even in second appeal, and when that is done, the plaint shall be taken to have been properly stamped right from the beginning. However, the other question raised in this behalf by Mr. Pir Bux Khan then requires consideration namely that the appellants have been seriously prejudiced on merits by the suit having been tried and the appeal having been heard by Courts not having jurisdiction in the matter. This connection, section 11 of the Suits Valuation Act comes to the rescue of the plaintiffs so as to save proceedings taken by the Trial Court as by the lower appellate Court, unless it is held that the under-valuation of the suit has indeed prejudicially affected the disposal of the suit or appeal on its merits.
12. ' There is a string of authorities laying down the proposition that the trial of a suit or the hearing of an appeal by a Court of inferior jurisdiction does not by itself raise a presumption that the decision was prejudicially affected on the merits. It has also been held that no prejudice on merits is to be presumed by reason of the fact that instead of bringing a second appeal, a first appeal might have been brought to the High Court so as enable both questions of law and fact to be examined.
13. The view of the authorities appears to be that in such a case the provisions of section 103 of the Civil Procedure Code might, at best, be pressed into service, by the High Court so as to satisfy itself that the findings on questions of fact recorded by the lower appellate Court are correct. Reference in this behalf may be made to Kalu Achan and others v. Pheriva Nethivar and others AIR 1924 Mad.
14. 6, Narasimham v. Subramanian and others AIR 1927 Mad. 201, Mt. Illahi Jan v. Rahman Ullah and another AIR 1928 Lah. 670, Allah Bux v. Shivji Mehraj AIR 1939 Lah. 451, B. Kanahaiya Lal and others v. Hamid All AIR 1940 Oudh 164, Bhim Raj Debi Bakhsh v. Gaya Prasad Sahu and others AIR 1941 Pat.
15. 532 and Kamedo Singh and others v. Raj Narain Singh and another AIR 1949 Pat.
16. 278.
17. ' The contrary view expressed in Mamraj Agarwala and others v. Ahmed All Mahmad AIR 1919 Cal.
18. 984 was taken note of and it was observed:- "As against the authorities mentioned in the preceding paragraph, the learned counsel for the appellants drew my attention to Mamraj Agarwala and others v. Ahmed All Mahmad AIR 1919 Cal.
19. 984(2) in which a Division Bench expressed the view that where a suit which had been under- valued was tried by Munsif's Court the defendant could reasonably say that he had been prejudiced by the case being tried by a Court which had no jurisdiction to try it. These observations are not supported by any reasoning, and the learned Judge who delivered the judgment of the Bench seems to have been influenced by the fact that as he was remanding the case for retrial on another ground, he was unwilling to accept the respondent's contention based on section 11(2) of the Suits Valuation Act. The view expressed in this case runs contrary to the view taken by most of the High Courts, and speaking with great respect, does not appear to be in conformity with the object underlying section 11 which is clearly to provide a machinery for curing the original lack of jurisdiction in the trial or the first appellate Court. If indeed the mere fact of trial by a Court of incompetent jurisdiction were to lead to a presumption of prejudice on the merits, then clause (2) of section 11 of the Suits Valuation Act would be tendered meaningless. It seems to me, therefore, that in deciding whether party has indeed been prejudiced on the merits of the case no presumption of prejudice is to be drawn from the mere fact of lack of jurisdiction on the contrary, something more must be shown to lead to an inference of prejudice. In the case before me the learned counsel for the appellants was not able to point to any such circumstances present on the record."
20. ' In Mst. Habib's case taking note of section 11 of Suits Valuation Act the aforesaid Judgment of Anwarul Haq, J. (as he then was) was followed.
21. In the present case the appellants had not raised any specific plea for challenging the pecuniary jurisdiction of the Trial Court nor any evidence was produced by them on the issue relating to jurisdiction as framed by the learned Trial Court. In these circumstances, the learned Trial Court proceeded with the matter and had given its findin on merits. It is only after the remand that the learned Trial Court C recorded evidence on these issues (issues Nos.10 and 12) and held that it did not have the pecuniary jurisdiction. In these circumstances, the provision of section 11 of the Suits Valuation Act can be pressed in service. It provides remedy for curing lack of pecuniary jurisdiction in the trial or First Appellate Court. The learned First Appellate Court has observed that the appellants did not address the arguments on other issues. In fact this observation has been made twice with an element of surprise and astonishment. The learned 1st Appellate Court has observed that although no other issues were argued on behalf of the appellants it has examined the entire case and has not found any prejudice caused to the appellant due -to under valuation. Section 11 provides protection and cures lack of pecuniary jurisdiction of the trial or the First Appellate Court.
22. But objection to pecuniary jurisdiction will be entertained by the appellate Court if it comes to the conclusion that over-valuation or under valuation has prejudicially affected the disposal of the suit or appeal on its merits. The Court is required to record its finding in writing before coming to such a conclusion. Such a finding has been given by the 1st Appellate Court. In the memo. Of appeal no ground has been taken challenging the finding of the learned Additional District Judge. Except issues Nos.10 and 12 the appellant has not raised any objection on the merits of the case before me.
23. In these circumstances section 11 will protect the proceedings before both the Courts below.
24. ' Mr. Kishanchand the learned counsel then contended that as the value of the share of the appellant in the property is Rs,32,000 appeal should have been filed in the High Court and not before the District Judge as provided by section 18 of the West Pakistan Civil Courts Ordinance, 1962. The appellant had filed appeal before the District Judge and after the remand when finding was given by the Civil Judge which was transmitted to the First Appellant Court, no such objection was raised by the appellant. Even in the memo of appeal filed in this Court no such objection has been raised. The appellant is, therefore, not entitled to challenge the jurisdiction of the First Appellat Court. More so as they had filed the first appeal invoking the jurisdiction of the District Judge and proceeded with the matter before him twice till the end.
25. ' The appeal is dismissed with cost.