' This Regular Second Appeal, under section 100, C.P.C. Was directed against the judgment and decree dated 3-6-1981 of the learned Additional District Judge, Faisalabad, whereby the first appeal of Sardar respondent was accepted and the judgment and decree dated 27-6-1977 dismissing the suit for pre-emption filed by Sardar respondent was set aside and resultantly the suit was decreed. This appeal was filed initially by Boota, Allah Din and Allah Rakha. Allah Rakha, however, later on submitted an application seeking withdrawal from the appeal and its dismissal to his extent. This application was allowed and the appeal to his extent was accordingly dismissed.
2. The necessary facts briefly stated are that Sardar, respondent, filed a suit for pre-emption claiming superior right of pre-emption being collateral of Mst. Alain Bibi and Mst. Siddique Bibi, daughters of Khair Din, the vendors. The land in dispute was sold vide registered sale-deed dated 4-2-1975 in the names of Boota son of Faqir Muhammad, - Sabir and lshaq sons of Allah Rakha and Manzoor son of Allah Din. These vendees resisted the suit by asserting inter alia that Sabir and lshaq sons of Allah Rakha and Manzoor son of Allah Din were in fact Benamidars of their respective fathers, namely, Allah Rakha and Allah Din and that the plaintiff's right of pre-emption was not superior qua Boota son of Faqir Muhammad, defendant No,1, and aforesaid Allah Rakha and Allah Din. It was also contended that the suit had not been properly valued for the purposes of court-fee and jurisdiction and that the real owners of the suit land are Allah Rakha and Allah Din alongwith Boota son of Faqir Muhammad and that Allah Rakha and Allah Din had already obtained a declaratory decree dated 29-5-1976 and, therefore, they are necessary parties to the suit. Allah Rakha and Allah Din were accordingly ordered to be impleaded as a party to the suit vide order dated 22-12-1976 of the learned Civil Judge. Sardar respondent/plaintiff complied with this order and submitted amended plaint impleading Allah Rakha and Allah Din, as defendants to the suit.
The plaintiff was ordered to make up deficiency in court-fee before 17-7-1976 by paying court-fee of Rs,450. This was so ordered vide order dated 28-6-1976. The court-fee of the requisite value was tendered in Court on 17-7-1976. Again, the question of court-fee was taken up on 22-10-1976 and the plaintiff was directed to pay additional court-fee of Rs,1,718 before 12-11-1976. This order was complied with and the additional court-fee was paid on 10-11-1976. The matter of court-fee was not agitated further by the defendants before the trial Court.
2-A. The learned Civil Judge after recording the evidence of the parties dismissed the suit acting upon the consent decree dated 29-5-1976 obtained by Allah Rakha and Allah Din and holding that in view of the said decree Boota, Allah Din and Allah Rakha and also Sardar were possessed of equal right of pre-emption. On the first appeal filed by Sardar plaintiff, the decree was set aside as the learned Additional District Judge was of the view that the consent decree dated 29-5-1976 was not binding on Sardar plaintiff as he was not a party to the said decree, and that Allah Rakha and Allah Din could not be treated to be purchasers of the land in dispute as in the sale-deed Sabir, Ishaq and Manzoor have been recorded as the persons who had purchased the land in dispute alongwith Boota. He further observed that Boota who had equal right of pre-emption qua Sardar plaintiff lost the right by associating with him in the purchase the persons whose rights were inferior to that of pre-emptor. In this respect reliance was placed on Mst. Fatch Bibi v. Ahmad Khan and 6 others PLD 1971 Lahore 171. This led to the filing of present second appeal.
3. Learned counsel for the appellants in support of the appeal, argued that the learned Additional District Judge has failed to decide the application for framing of issues about limitation and for raising objection about the pecuniary jurisdiction of the appellate Court and as such the impugned judgment and decree is not sustainable. On merits, it was submitted that the learned appellate Court was wrong in holding that the decree dated 29-5-1976 was of no avail and that Allah Rakha and Allah Din could not be treated as real owners of the land in dispute.
4. The application for framing of issue as to limitation due to non-payment of proper court-fee appears not to have been pressed at the time of final arguments in the first appeal as there is no mention of same in the impugned judgment. Had the said application been pressed then the same would have been dealt with by the learned Additional District Judge while disposing of the first appeal. No doubt, a ground as to the failure of the learned first appellate Court to decide the said application has been taken in the memo of the second appeal but it has not been specifically urged that this application was pressed at the time of final arguments by the learned counsel who had argued the first appeal before the learned first appellate Court. Not only that such a plea should have been specifically taken in the memo of appeal but also it should have been supported by an affidavit of the learned counsel who had argued the first appeal. In the absence of such an affidavit, it has to be presumed that the said application was not pressed and the aforesaid plea was not urged. This plea therefore cannot be urged in the second appeal at this stage.
5. Even otherwise, there is no merit in the objection as to limitation raised in the said application based on the plea that deficiency in court-fee was made up on 17th July, 1976 whereas it was ordered to be made good by 16th July, 1976. The position which emerges from the record, in this respect, is that the learned Civil Judge firstly on 28-6-1976 directed the plaintiff to pay additional court-fee of Rs,450 before 17th July, 1976. The requisite court-fee was deposited on 17th July, 1976.
Again on 22-10-1976, learned Civil Judge directed that court-fee of Rs,1,718 be deposited before 12- 11-1976. This order was complied with by affixing the additional court-fee as demanded on 10-11- 1976. The orders thus stood complied with in letter and spirit. This objection was then not pursued before the trial Court. The delay of one day in paying the court-fee became inconsequential when another order for paying court-fee was passed on 22-10-1976. The suit, in the circumstances, was not barred by time in view of the law laid down in Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289. This objection is, therefore, repelled.
6. This appeal was admitted for consideration of two points only viz. (i) Whether the principle of sinker was rightly applied in this case and (ii) Whether the Court acted illegally in allowing the time for making good the deficiency in the court-fee. The question of court-fee has been answered above. The suit cannot be held to have become barred by time.
7. As regards the question, whether the principle of sinker was rightly applied, suffice it to mention that the decree dated 29-5-1976 is admittedly not binding on Sardar respondent/plaintiff. No independent evidence was produced in the lower Court to establish the plea that Allah Rakha and Allah Din were the real owners. In this view of the matter, learned first appellate Court was right in holding that Allah Rakha and Allah Din cannot be treated to be the Benamidars on the basis of consent decree dated 29-5-1976. The real purchasers, as mentioned in the said deed, were their sons who admittedly possessed rights inferior as compared to the pre-emptor who is collateral of higher degree. Boota appellant though is possessed of equal right qua the pre-emptor, but he associated with himself in the purchase other persons namely Sabir, Ishaq and Manzoor who possessed rights inferior to that of the pre-emptor. The learned first appellate Court was, therefore, right in placing reliance on the case of Mst. Fateh Bibi (supra) and in holding that Boota appellant could not resist the suit and that the principle of sinker applies. The suit of the respondent was, therefore, rightly decreed.
9. The net result of the above discussion is that there is no merit in the appeal and the same is hereby dismissed with no order as to cost.