' IHSAN-UL-HAQ CHAUDHRY, J.---The relevant facts for the decision of this R.F.A. Are that Saeed Ahmad Hashmi was owner of land measuring 390 Kanals situated in Chak No,52-A Tehsil Liaquatpur. He allegedly agreed to sell the same vide agreement to sell dated 30-4-1976 for a total sum of Rs,2,25,000 out of which a sum of Rs,1,50,000 was paid as earnest money. Saeed Ahmad ,Hashmi died leaving behind respondents Nos.1 to 6 as heirs. The appellant filed a suit for specific performance of the agreement. It appears that in the meanwhile, defendant No,1 sold his entire share of 111 Kanals through sale-deed dated 18-3-1978 to defendants Nos.9 to 11 while defendant No,2 transferred her share in favour of respondents Nos.7 and 8. Therefore, defendants Nos.9 to 11 were impleaded as defendants. They proceeded to transfer the land to the appellant through sale- deed dated 19-2-1980 placed on record as Exh.P5 and the defendant No,5 proceeded to transfer her share of 56 Kanals, 14 Marlas to the appellant vide sale-deed dated 22-12-1979 placed on record as Exh.P6 while defendant No,3 gifted land to her son who proceeded to transfer the same to the appellant vide sale-deed dated 9-10-1990 Exh.D2. Some of the defendants appeared and contested the suit. The trial Court framed issues, recorded evidence and after hearing the arguments dismissed the suit vide judgment and decree, dated 27-5-1991. Now this appeal which was admitted to hearing and notice was issued to the respondents out of whom respondents Nos.2, 3 and 5 to 7 appeared through Sh. Hakim Ali, Advocate and contested the appeal.
2. The learned counsel for the contesting respondents raised a preliminary objection to the effect that since the value of the subject-matter of the appeal is Rs,98,909.21, therefore memorandum of appeal may be returned to the appellant for presentation to the proper Court. The learned counsel in this behalf referred to the cases reported as Shiv Dial v. Shiv Ram Das AIR 1928 Lahore 635; Mumtaz Begum v. Ch. Zulfiqar Ali PLD 1960 (W.P.) Lah. 1088; Haji Gul v. Aisha PLD 1973 Kar. 653; A.M.
Burq v. Central Exchange Bank Ltd. PLD 1966 (W.P.) Lah. 1; Province of Balochistan v. Sardar Muhammad Usman Khan PLD 1987 Quetta 33; Daud Baig v. Additional District Judge 1987 SCM R 1161; Muqarrab Khan v. Muhammad Anwar Khan PLD 1964 (W.P.) Pesh. 228 and Muhammad Amin v. Afzal Ahmad 1986 CLC 126.
3. On the other hand, the, learned counsel for the appellant argued that it is clear from the issues framed in the suit that the suit was - pertaining to the whole of the land and not part. It is added that the question relating to valuation was to be decided by the Court in view of the provisions of section 12 of the Court Fees Act. This question was not attended by the trial Court, therefore, the appeal would be deemed in respect of the entire area and the same was rightly filed in this Court and should be heard by this Court.
4. We have given our anxious consideration to the arguments of the learned counsel for the parties and gone through the record. It is clear from the record that the plaintiff had already purchased part of the land as detailed hereunder:--- {{TABLE}} Name of Vendor Date of Sale Deed Exhibit Area sold K M Mamoona Batool 22-12-79 P/6 56-14 (Defendant No,5)
Rahmatullah, 19-2-80 P/5 111-0 Nasrullah, Zaffarullah (Defendants Nos.9 to 11)
Raza Ali 9-10-90 D/2 56-14 (Donee from defendant No,3)
Total 224-8 {{TABLE}} ' This way, now the suit for specific performance is only in respect of the land inherited by defendants Nos.2, 4 and 6 and in term of area 165 Kanals, 12 Marlas. The proportionate value of it comes to about Rs,98,909.21. The court-fee on the memorandum of appeal is payable as prescribed under Article 1, Schedule I of the Court Fees Act while in view of section 8 of the Suits Valuation Act the jurisdictional value is to follow the valuation of court-fee.
5. The plaintiff-appellant after purchasing the area through documents Exh.P/5 and P/6 got the names of defendants Nos.1, 5, 9 to 11 struck off from the array of defendants vide statement dated 28-4-1980 while the name of defendant No,3 was got struck off vide statement dated 25-5-1991.
Now looked from this angle again decree for specific performance is sought only in respect of defendants Nos.2, 4 and 6. We may pause for a moment and observe that instead of getting their names struck off as defendants the appellant unwisely again got them impleaded as respondents to this appeal. This also caused a little confusion. It is, therefore, clear that the subject-matter of the appeal is the share of defendants Nos.2, 4 and 6 which in terms of area is 165 Kanals, 12 Marlas. In case the appellant succeeds in his suit he would pay to the defendants a sum of Rs,98,909.21 approximately in terms of the agreement. The valuation of the appeal is to be in accordance with the subject-matter of the appeal. The learned counsel for the respondents has rightly referred to the judgment in the case of Muhammad Amin (supra). The relevant portion reads as under: "***Now comes the question of court-fee payable on the memorandum of appeal. Section 7 of the Court Fees Act is a charging section which shows how the court-fee payable on various claims is to be computed. Article 1 of Schedule I provides a supplement to it. When subject-matter of the suit and the appeal is identical, court-fee payable on appeal remains the same which was paid on the plaint. However, when the two are different, court-fee payable is to be calculated on the value of subject-matter in dispute in appeal. What is the value of subject-matter in this appeal? Is it the same or different from the plaint? Short answer is that value of the subject-matter in appeal is confined to relief of specific performance which relief was refused to the plaintiff when his plaint was partially rejected. Karachi High Court in Haji Gul and another v. Mst. Aisha PLD 1973 Kar. 653 on this observed:--- 'No doubt if the ' subject-matter' both in the original suit and in appeal is the same, the court-fee on the memorandum of appeal would be the same as on the plaint, but if the relief claimed in the suit and appeal are different or the 'subject-matter' in the appeal differ and the court-fee has to be paid ad valorem basis, the court-fee payable on the memorandum of appeal would be different from the one paid on the plaint and would have to be determined in accordance with the 'subject- matter' and the relief claimed by the appellant.'
' In the instant case, relief claimed, is setting aside that part of the order whereby plaint was partially rejected and this alone was the subject-matter in dispute in appeal. Court-fee, therefore, was payable on the sum of Rs,20,000 the price agreed to be paid for the land to be sold. Suit was instituted on 6-3-1980. Claims to the extent of Rs,25,000 were exempted from playability of court- fee. Court-fee, therefore, was not deficit."
6. The upshot of the above discussion is that the value of the appeal for the purpose of jurisdiction and court-fee is less than Rs,2,00,000 (Rupees Two Lacs), therefore, we uphold the preliminary objection. The result is that the office is directed to return the memorandum of appeal to the appellant for presentation to the proper forum and refund the court-fee to the appellant.