1. ' This Civil Revision is directed against the order dated 5-8-1991 and decree dated 21-8-1991 passed by the District Judge, Dadu in Civil Appeal No, 73/87 thereby setting aside the judgment and decree passed by the Civil Judge Dadu in favour of the petitioner and remanding the case to the trial Court.
2. ' The facts leading to the filing of the above revision are that on 2S, 10-1986 the petitioner filed a suit for possession, permanent injunction and mesne profit in the Court of the Civil Judge, Dadu against the respondents. The case of the petitioner as set out in the plaint was that the agricultural land bearing Survey No,837 admeasuring 2.2 acres in Deh Marakhour, Taluka Dadu which was previously owned by one Hindu and thereafter by one Muhammad Bachal was purchased by the father of the applicant under a registered sale-deed dated 31-1-1983 and such entry was also effected in his favour in the record of rights. The father of the petitioner Fazaluddin expired in the year 1985 leaving behind the petitioners as his survivors who inherited the above survey numbers. It is the case of the petitioners that the respondents who had their office in the south of Survey No,837 belonging to the petitioner had converted it into a store and while doing so through their subordinate staff dug some ditches- in Survey No,837 for raising construction, This act of the respondents in the days of the petitioner's father resulted in filing of a suit for permanent injunction. This suit was compromised on 26-3-1984 and a compromise decree was passed wherein the respondent undertook that they would not encroach upon any portion of Survey No,837 in May 1986 the respondents Nos.2 and 3 again started construction of compound wall over a portion of Survey No,837 whereby they encroached upon the area of 13 Ghuntas from it and thus a suit for restoration of possession and mesne profit was filed. The respondent resisted the case of the petitioners. On the pleadings of the parties the trial Court framed the following issues:--
(1) Whether there exists road leading from Indus Highway towards the suit land belonging to the plaintiff?
(2) Whether the WAPDA has raised the construction on their land and they have not encroached upon the suit land?
(3) What is the effect of decree dated 26-3-1984 passed in F.C. Suit No,18 of 1984?
(4) What should the decree be?
3. ' The parties led evidence in support of their respective contentions. The learned trial Court on assessm ent of the evidence decreed the suit and passed a preliminary decree under which the Commissioner submitted, his report on 6-7-1987 which was confirmed by the trial Court on 12-8- 1987 and thereafter the final decree was prepared. Against the passing of the judgment and decree of the trial Court in favour of the petitioner, the respondent filed appeal before the District Judge, Dadu being Civil Appeal No,73 of 1987. The learned District Judge Dadu, after hearing the arguments of both the Advocates passed his judgment on 28-6-1988 whereby he without setting aside the judgment and decree of the trial Court directed the trial Court to examine the Tapedar of the area to determine the exact location of the survey number in dispute and further allowing the parties to bring on record any documentary evidence additionally in support of their case. Being aggrieved of this judgment of the District Judge, Dadu, the present petitioners filed Revision Application No, 31/88 which was admitted for regular hearing on 18-9-1988. However, it was later on dismissed as withdrawn. The learned Civil Judge, Dadu under the direction of the appellate Court examined the Tapedar on 2-4-1988 who produced documents Exhs.59 to 61. Apart from him one other witness was also examined. The learned trial Court after recording the evidence of these two witnesses sent back the R & P of the case to the learned District Judge, Dadu, who passed another order in the matter whereby he directed the Assistant Commissioner, Dadu to inspect the site and submit his report. In compliance of the order, the Assistant Commissioner, Dadu, alongwith his subordinate staff inspected the site in presence of the parties' Advocates and took the necessary measurement and thereafter the Assistant Commissioner was examined in Court who produced all the record of Survey No,837 alongwith his own report wherein he dearly stated that the respondents have encroached upon the area of 25 Ghuntas of the land of the petitioner. The learned District Judge then heard the Advocates of the parties and passed the impugned judgment and decree dated 5-8-1991 and 21-8-1991 whereby he set aside the judgment and decree and again remanded the case to him with an additional issue to record further evidence and hence the present Revision petition .
4. ' Mr. Anwar Zaheer Jamali the learned counsel appearing for the petitioners has contended that there was not enough material on record to determine the point involved and that the learned District Judge has remanded the case for determination of an issue which was never raised by any of the parties before any Court and which could not have in any case been taken up in appeal in view of section 11 of the Suits Valuation Act. Mr. Jamali has cited the following cases in support of his contention:--
(1) Malik Muhammad Ashiq v. The Okara Zamindara Cooperative Society Ltd. And others PLD 1967 Lah.
5. 75.
(2) Raja Khizar Hayat and others v. Saleh Muhammad PLD 1986 Lah.
6. 242.
(3) Abdul Majid and others v. Muhammad Walayat Khan 1987 SCMR 1139.
(4) Syed Aulad All Shah Gil ani v. Azad Jammu and Kashmir Government through Chief Secretary and another PLD 1987 SC (AJ&K) 1.
(5) Ghulam Farid and 5 others v. Zilledar 1989 CLC 1515.
(6) Muhammad Akram v. Sultan Ahmad 1986 MLD 1182.
(7) Munna v. Sharifuddin 1989 MLD 1776.
(8) 1990 ALD 412 (Najmul Hassan Farooqui and 4 others v. Messrs United Carpet Limited).
(9) Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Kar.
7. 624.
8. ' On the other hand Mr. Abdul Hameed Khan learned counsel appearing for the respondents has supported the impugned judgment and decree.
9. ' I have considered the contention of the learned counsel appearing for the parties and perused the record. The petitioners have averred in para. 12 of the plaint as follows:-- "12. That for the purpose of court-fee, the suit is valued as under:-- {{TABLE TEXT}} For possession RsA,000.00 being the value of 04.3 Ghuntas of land. For permanent injunction Rs,200 For mesne profits. Rs,200 tentatively.
10. ' Since the value is below Rs,25,000 hence no court-fee stamp is paid However, plaintiffs undertake to pay the court-fee whenever directed by the. Hon'ble Court.
11. ' The respondents filed joint written statement in which in para. 11 it was stated as follows:- "11. Nothing is to be said for paras. Nos.11, 12 and 13 of the suit."
12. ' It is an admitted position that no issue has been framed at the instance of either of the parties.
13. Applying the principle laid down in the above-cited cases it accessary to reproduce section 11 of the Suits Valuation Act which reads as under:-- "11. Procedure where objection is taken on appeal or revision that a suit for appeal was not properly valued for jurisdictional purposes:
(1) Notwithstanding anything in section 578 of the Code of Civil Procedure an objection that by reason of the overvaluation or undervaluation of a suit or appeal a Court of first instance or lower Appellate Court which had no jurisdiction with respect thereto shall not be entertained by an Appellate Court unless--
(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in the memorandum of appeal to that Court, or
(b) the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal, was overvalued or under-valued, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.
(2) If the objection was taken in the manner mentioned in clause (a) of subsection (1), but the Appellate Court is not satisfied as to both the matters mentioned in clause (b) of that subsection and has before it the materials necessary for the determination of the other grounds of appeal itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instances or lower Appellate Court.
(3) If the objection was taken in that manner and the Appellate Court is satisfied as to both these matters and has not these materials before it, it shall proceed to deal with the appeal, under the rules applicable to the Court with respect to the hearing of appeals, but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.
(4) The provisions of this section with respect to an Appellate Court shall, so far as they can be made applicable, apply to a Court exercising revision jurisdiction under section 622 of the Code of Civil Procedure or other enactment for the time being in force.
(5) This section extends to the whole of (Pakistan) and shall come into force on the first day of July, 1987."
14. ' It is by now settled legal position that in order to invoke the provisions of section 11 of the Suits Valuation Act the following three conditions should be present:--
(i) The objection was taken in the trial Court before framing of the issues or in the lower Appellate Tribunal in the memorandum of first appeal"' as the case may be;
(ii) the Appellate Court is satisfied as to the validity of the objection, and
(iii) such wrong valuation of the suit has prejudicially affected the disposal of the suit or appeal, as the case may be.
15. ' It is also settled that all the conditions must co-exist to, make the decree or the order a nullity. The present suit was properly valued but even if it is assumed that the suit was not properly valued, this fact alone will not be of any help to the respondents because they will not be prejudicially affected in terms of section 11 of the Suits Valuation Act. In any case the Appellate Court has framed an additional issue for determination of the market value. It was the duty of the Appellate Court to see whether the respondents have been prejudicially affected by the disposal of the suit on merits in terms of section 11 of the Suits Valuation Act or not. This aspect has not been considered by the learned appellate Court. In these circumstances Mr. Anwar Jamali has rightly pointed out that this is a case for remand as the District Judge has not taken into consideration as to whether all the conditions co-exist to make the order/decree a nullity.
16. Mr. Abdul Hameed Khan learned counsel for the respondents has fairly conceded that it is a case of remand. I think the request is just and proper in the circumstances of the case. The Civil Revision is allowed and the impugned order of remand and decree of the learned District Judge are set aside. The appeal is deemed to be pending for adjudication in accordance with law. The parties through their counsel are directed to appear before the District Judge, Dadu on 7-3-1992. The learned District Judge is directed to decide the appeal in accordance with law and decide afresh the aforesaid aspect after giving notice to the parties within two months from 7-3-1992. In the circumstances the parties are directed to bear their own costs.