' This revision petition arises out of a suit for pre-emption filed by Mst. Nasima Faiz, petitioner daughter of Malik Faiz Muhammad vendor, on 12-11-1969. The court-fee of Re.1 only was affixed on the plaint with an undertaking in para. 8 of the plaint to pay the balance as ordered by the Court.
2. The dispute relates to land measuring 398 Kanals situated in Chak No357-A/T.D.A. Mauza Lohanch, Thal Kalan, Tehsil Layyah, District Muzaffargarh at present District Layyah. It was sold by Faiz Muhammad vendor to Abdul Raheem son of Mehar Din, Abdul Majeed son of Abdul Karim, Ghulam Muhammad and Jamal Din sons of Khair Din and Ghulam Muhammad son of Haji Abdul Ghani for a sum of Rs,49,000 through registered sale-deed dated 12-11-1968. The suit was resisted by the respondents who filed their written statement which gave rise to the following issues:--
(1) Whether the plaintiff had superior right of pre-emption? O.P.P.
(2) Whether a sum of Rs,49,000 was bona fide fixed or actually paid as the sale price of the suit land? O.P.D.
(3) What was the market value of the suit land? O.P.P.
(4) Whether the defendants had spent Rs,3,571 as registration fee and Rs,10,700 as improvement charges and whether they were entitled to recover the same? OPD
(5) Whether the suit was deficiently valued for the purposes of court-fee and jurisdiction? OPD
(6) Whether the suit was time-barred? OPD
(7) Whether the plaintiff had waived her right by her conduct? OPD
(8) Whether the plaintiff had not instituted the suit for her own sake? OPD
(9) Whether this Court has no pecuniary jurisdiction to try the suit? OPD
(10) Whether the written statement has not properly been presented? OPD
3. The trial Court recorded the evidence of the parties and after perusing the same came to the conclusion that petitioner/plaintiff enjoyed superior right of pre-emption on the ground of being the daughter of the vendor and decreed the suit vide the judgment and decree dated 7-2-1976. On issues Nos.2 and 4, the Court held that the sale price was Rs,49,000 and that the defendants/respondents had spent a sum of Rs,8,666 on improving the land. The Court also held that a sum of Rs,1,948 was paid for registration of sale-deed. Thus, the plaintiff/petitioner was required to pay a total sum of Rs,59,614.17 within one month. On issue No,5, the trial Court held that value of the suit for purposes of court-fee was Rs,55,270.26 but no finding was recorded under this issue qua the jurisdictional value of the suit.
4. Against the judgment and decree of the trial Court R.FA. No,20 of 1976 was filed in this Court on 3- 3-1976 which remained pending for some time and was ultimately sent back to the learned District Judge, Layyah after the enhancement of the pecuniary jurisdiction of the said Court in the year 1986. The Appellate Court accepted the appeal vide the judgment dated 23-12-1986 and remanded the case for a fresh trial by a Civil Judge, First Class on its finding that the Civil Judge IIIrd Class had no pecuniary jurisdiction to try the suit. Before the Appellate Court only issue No, 9 relating to the pecuniary jurisdiction of the Court was pressed.
5. The petitioner's learned counsel contends as under:--
(i) The R.F.A. Was not properly constituted as it was not accompanied with the decree sheet of the trial Court.
(ii) The original R.F.A. Was filed in the wrong forum (the High Court) although, it was competent before the District Judge. An objection was raised on 2-6-1976 before this Court regarding incompetence of the appeal. The respondents' learned counsel sought adjournment to meet the objection and the case was adjourned for several times. After hearing the arguments of the parties the Court passed an order on 3-2-1977 holding therein that the said objection would be considered at the time of final hearing of the appeal. In the meanwhile, the law underwent a change and the appeal was sent to the District Judge for disposal on merits.
(iii) The decree sheet was filed by the respondent on 30-3-1976, long after the expiry of the period of limitation. Had the appeal been filed before the District Judge, it would have been dismissed as time-barred.
(iv) The valuation of the suit for purposes of pecuniary jurisdiction was mentioned as Rs,3.60 in the decree sheet. The forum of appeal under the law was the District Judge. There was no justification to file the R.FA. In the High Court. He adds that for determining the forum of appeal the valuation of the subject-matter as given in the plaint had to be seen but the respondents selected the forum .Of appeal of their own choice after ascertaining the notional value for the purpose of jurisdiction. In support of his contention he places reliance on the following judgments:--
(1) Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393.
(2) Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284.
(3) Abdul Majeed and others v. Muhammad Walayat Khan 1987 SC MR 1139.
(v) Since no prejudice was caused to the respondents by the judgment of the learned Civil Judge on merits remand, order on the sole ground of lack of pecuniary jurisdiction was not justified. In fact the decision of the trial Court on other issues was not attacked before the learned District Judge. In this connection he relied on the case of Raja Khizar Hayat and others v. Salah Muhammad PLD 1986 Lah.
242.
6. On the other hand, learned counsel for the respondents submits as under:--
(i) The respondents had applied for certified copy of the judgment and decree, dated 7-2-1976 on the same day but only copy of the judgment was provided to him because the decree sheet had not been prepared. Subsequently, the decree sheet was prepared and the respondent made application dated 11-3-1976 for certified copy of the decree, obtained it on the same day and placed it on the record on 30-3-1976. The time from 7-2-1976 upto 11th March, 1976 will be excluded being requisite for obtaining certified copy of the decree.
(ii) The value of the subject-matter of the suit for purposes of court-fee and jurisdiction was Rs,55,270.26 (as determined by the trial Court). Hence, prima facie the appeal was competent before the High Court.
(iii) The disputed land forms part of assessed Khata No,297, out of which some land was assessed to land revenue. However, no land revenue was fixed in respect of the disputed land.
(iv) The valuation of the suit for the purposes of jurisdiction made by the Appellate Court on the basis of Chart of Net Profits was correct. It comes to Rs,55,270.26. Therefore, the remand order was rightly passed in the case.
(v) The provisions of section 11 of the Suits Valuation Act apply only to those cases where the valuation of the suit is left to be determined by the parties or the Court and not to those cases where the valuation is fixed by the rules. If the valuation is fixed by the rules, then the under- ' Valuation or overvaluation by a party even in the absence of prejudice would create the defect of lack of pecuniary jurisdiction. He adds that if there is any error or designed illegality on the part of the plaintiff even then section 11 does not apply.
(vi) Lastly he submits that the remand order was rightly passed by the Court in exercise of its discretionary powers and does not call for any interference in exercise of revisional jurisdiction.
7. In their appeal, before the District Judge, the respondents had merely attacked the findings of the trial Court on issue No,9 relating to the pecuniary jurisdiction of the trial Court. The said issue reads as under:-- "Whether this Court has no pecuniary jurisdiction to try the suit?" OPD It is significant to mention that the petitioner did not challenge the findings of the trial Court on issue No,5 regarding valuation of the suit for purposes of court-fee by filing cross-objections. The trial Court had recorded a specific finding that court-fee was payable under the provisions of section 7(V)C of the Court Fees Act on the basis of the Chart of Net Profits, pertaining to two harvests before the institution of the suit. The Court had calculated the net profits on the basis of the chart Exh.D.10 and held the valuation of the suit for purposes of court-fee to be Rs,55,270.26. After having accepted the findings on issue No,5 it was not open to the petitioner to object to the competence of the appeal before the High Court. The respondents had rightly filed the appeal in this Court because at the relevant time the pecuniary jurisdiction of the District Judge did not exceed Rs,50,000. The respondents had made an application for certified copy of the judgment and decree of the trial Court on 7-2-1976 but only a co,,y of the judgment was provided to them as the decree sheet had not been prepared.
Subsequently the decree sheet was prepared and the respondents again made an application for certified copy on 11-3-1976 which was obtained on the same day and placed on the record on 30- 3-1976. The appeal in the High Court could be instituted within a period of 90 days. Even if the appeal is presumed to have been filed on 30-3-1976 it was certainly within time. The appeal remained pending in this Court for a number of years and after increase of the pecuniary jurisdiction of the appellate Court was sent to the District Court and was competently decided by the learned District Judge. Hence, the petitioner's objection that the appeal before the District Judge was time-barred, is repelled.
8. The material on the record shows that the disputed land measuring 398 Kanals, bearing Khatauni No,665, Khasra No,1/10 is part of Khata No,297. The Jamabandi for the year 1945-46 (Exh.P.2) shows that the land falling in Khata No,297 consists of different Khataunis comprised of arable as well as barren lands. The Jamabandi further shows that the land comprised in different Khataunis is partly exempt from payment of land revenue while land revenue is duly assessed on other parts of the land. This will be evident from the following entries in the Jamabandi:-- {{URDU TEXT}} ' No,665, Khasra No,1/10 shows that the land was Banjar Qadeem. However, subsequently the said land was brought under cultivation and gave rise to net profits as is shown by the Chart of Net Profits Exh. D.10. The entry {{URDU TEXT}} appears on the Register Haqdaran Zamin for the year 1945-46. The said entry is in the form of a note and does not bear the signature of anybody. It has no legal value particularly when it is belied by the contents of the Jamabandi itself which shows that the land falling in different Khataunis is partly assessed to land revenue, the amount whereof, varies in respect of different lands. Even if it is presumed that the disputed land pays no land revenue or is charged with fixed payment, still jurisdictional value of the suit would come to Rs,55,270.26, calculated under Rule 1(c) of the Rules framed under section 3 of the Suits Valuation Act, 1887. The said Rule reads as under:-- "1(c) Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue and net profits have arisen from the land during the year next before the date of presenting the plaint, fifteen times such net profits. But where no such net profits have arisen therefrom, the market value."
' The fact that the disputed land subsequently became arable and gave rise to net profits is fully proved by the Chart of Net Profits Exh.D.10 The said document was exhibited in the statement of Ikram-ul-Haq, Advocate, learned counsel for respondents/defendants, made on 22-5-1975, without any objection from the petitioner's side. It is not the petitioner's case that the land is still barren or that the Chart of Net Profits Exh.D.10 is fictitious. The disputed land became part of Chak No,357/TDA and Fard-e-Taqseem prepared in the year 1959 shows that it was divided into different rectangles.
Prior to the institution of the suit, the land had been brought under cultivation and gave rise to net profits. The petitioner being the plaintiff in the trial Court was supposed to place the Chart of Net Profits on the record but she failed to discharge her legal obligations. Instead, the respondents placed the said chart on the record without any objection from the petitioner's side. It showed that the net profits amounted to Rs,4,443.57, calculating at the rate of 15 times of the net profits, the value of the suit for purposes of court-fee was worked out by the trial Court as Rs,55,270.26. The petitioner accepted the said findings of the Court and paid the court-fee accordingly. Hence on the basis of Rule 1(c) of the Rules framed under section 3 of the Suits Valuation Act, the valuation of the suit for purposes of jurisdiction also came to be Rs,55,270.26. That being so, on the one hand the suit was clearly beyond the competence of the Civil Judge 3rd Class and on the other hand the appeal was beyond the pecuniary jurisdiction of the District Judge (at the time of decision of the suit). Therefore, as held above, the respondent had rightly filed the appeal before the High Court which was subsequently sent to the District Judge after enhancement of the pecuniary jurisdiction of the said Court. The Appellate Court has rightly held that the 1994] Nasima Faiz v. Abdul Rahim 817 Mian Nazir Akhtar, J) ubject-matter of the suit was beyond the pecuniary jurisdiction of the Civil Judge IIIrd Class and rightly remanded the case to the Court of competent jurisdiction for fresh trial in accordance with the law.
9. The argument of the petitioner's learned counsel that for determining the forum of appeal the valuation of the subject-matter as given in the plaint had to be seen, is not acceptable in the circumstances of the present case. Generally, the rule that the forum of appeal is to be determined on the basis of valuation of the subject-matter of the suit given in the plaint is applicable where a plaintiff is entitled to fix notional value of the subject-matter and a different finding regarding valuation of the suit is not recorded by the trial Court. In the present case, the petitioner had given the value of the subject-matter of the suit as Rs,3.60 and the trial Court failed to record any specific finding under the second part of issue No,5 relating to valuation of the suit for purpose of jurisdiction. Moreover, the general rule referred to above is not attracted in the instant case as the matter is governed by a clear provision of the law i,e, rule 1(c) of the Rules framed under section 3 of the Suits Valuation Act which is identical to provisions of section 7(v)C of the Court Fees Act.
Since the disputed land had given rise to net profits amounting to Rs,4,443.57, the valuation of the suit for purpose of court-fee and jurisdiction came to Rs,55,270.26 and at the relevant time the first appeal was competent in the High Court. The judgments relied upon by the petitioner's learned counsel in the cases of Elahi Bakhsh and others, Muhammad Nawaz and Abdul Majeed lend support to the proposition that value of suit for purpose of jurisdiction given in the plaint controls the forum of appeal but these are not applicable in the present case in which the value of the subject-matter of the suit for purpose of jurisdiction given by the petitioner/plaintiff was clearly wrong and against the provision of Rule 1(c) of the Rules framed under section 3 of the Suits Valuation Act.
10. The argument that in the absence of any prejudice to the respondents/defendants, the case should not have been remanded to the trial Court was never raised before the Appellate Court and cannot be allowed to be raised for the first time at the revisional stage. The question of prejudice is essentially one of fact and could have been determined by the Appellate Court, had the said question been raised before it. The remand order passed by the Appellate Court is legal and does not suffer from any material irregularity. The judgment in the case of Raja Khizar Hayat and others relied upon by the petitioner's learned counsel is distinguishable. In the said case the Division Bench was hearing the First Appeal and noted that no objection to the pecuniary jurisdiction of the trial Court was raised by the defendant and that despite lack of pecuniary jurisdiction the defendants were unable to demonstrate any prejudice caused to them in disposal of the case on merits. In the present case, an objection to the pecuniary jurisdiction was raised by the defendants/respondents in the trial Court, and issue No,9 was struck about it and decided in favour of the petitioner/plaintiff. The Appellate Court reversed the findings of the trial Court on issue No,9 and remanded the case for a fresh decision by a Court of competent jurisdiction. The question whether any prejudice was caused to the defendants by decision of the suit on merits was not agitated before the Appellate Court.
11. For the foregoing discussion, I find no merit in this revision petition which is dismissed leaving the parties to bear their own costs.