SAYED NAJAM-UL-HASSAN KAZMI, J.- This judgment will decide C.R.No. 1830 of 1983 and C.R. 1831 of 1983 as the same are directed against one judgment.
2. Land measuring 38 kanals 9 marlas was sold by Abdul Haq, in favour of Liaqat Ali Baig Shaukat Ali Baig, Shafqat Ali Baig and Rafiq Ali Baig sons of Inayat Baig, petitioners herein, vide sale deed, dated 17.12.1976, in consideration of Rs.46,000/-. This land included agricultural land measuring 38 kanals 8 marlas and one maria of Banjar land. To pre-empt this sale, two suits for possession through pre-emption were filed, one by Allah Rakha son of Rukan Din and other by Muhammad Shafi and others, respondents No.1 to 9 herein, on the ground of owners in the village estate.
3. The two suits were dismissed by the learned Civil Judge, Daska, vide judgment, dated 27.10.1980.
Two appeals were filed to challenge the judgments, which were accepted by the learned Additional District Judge, Sialkot vide judgment, dated 20.10.1983. In consequence, on reversal of the judgment of the learned Court below, two suits for pre-emption were decreed and the pre- emptors were allowed to share the land, in the ratio of 522/1117 and 595/1117 respectively.
4. In the two revision petitions, judgment of the learned Additional District Judge, decreeing the suits for pre-emption, has been assailed.
5. Learned counsel for the petitioners, argued, that the respondents could not prove superior right of pre-emption as on the date of sale, filing of suits and decree inasmuch as, no Jamabandi was produced for the period during which the suit was filed. He further submitted, that the suit was not properly valued and that on question of Valuation of exact amount of Court fee was not determined by any of the Courts below. He submitted, that though the suit cannot be dismissed without requiring the pre-emptors to make up the deficiency yet the valuation should have been determined. No one has entered appearance on behalf of respondents, who have been proceeded ex parte.
6. On giving due consideration, to the submissions made and scanning the record, I am of the view, that for the reasons hereafter, the two revisions are without substance.
7. The respondents-pre-emptors had claimed superior right of preemption, on the ground of ownership in village. In support of this plea, documentary evidence, comprising of Exh. P-1, Exh. P-2, Exh-PA and Exh.PB was produced. Exh. P-2, is copy of Register Haqdaran for the year, 1970, which shows that by virtue of Mutation No.5, land measuring 30 Kanals 6 marlas was purchased by Muhammad Shafi, Fateh Muhammad, Ahmad Khan and Allah Rakha and others, pre-emptors in the two cases which mutation was attested on 23.10.1972. Exh.PA is copy of Register Haqdaran for the year, 1970 pertaining to the ownership of Abdul Haq. It also mentions about the attestation of sale transaction in favour of the Petitioners-vendees pre-empted. Exh.PC is the copy of Khasra girdawari. To support documentary evidence, the respondents produced oral evidence.
Muhammad Shafi pre-emptor appeared as PW-1 and deposed, that the plaintiffs were owners of land in the village while the vendees petitioners did not on any land. This part of the statement was not subjected to cross-examination, though certain questions were put, to cover other controversies. Allah Rakha pre-emptor appeared as DW-5/1, who deposed that the vendees- petitioners did not on any land before the sale and that after the purchase they did not construct a khal of their on and irrigated the land from the Tube-well of DW-5/1. Even this witness was not cross-examined on the question of superior right. So much so, Liaqat Baig, petitioner No.1, appeared as DW-1 and did hot depose a single word, in his examination-in-chief, for denying the superior right of pre-emption of respondents. It was not stated, that the respondents did not on land in the village. The documentary evidence, thus proved, that the respondents-vendees were owners of land in, the village, on the basis of mutation attested in their favour, in 1972. The oral evidence also proved their superior right as the petitioners did not challenge the statement in cross-examination nor led evidence to the contrary. The petitioners mostly concentrated on the plea of estoppel and other issues and did not try, to either controvert this position, in their on evidence or in cross-examination of the pre-emptors. The argument, that the jamabandi for the year, 1974 should have been produced, is devoid of any substance. Reason being, that it was not the case of the petitioner, at any stage, that respondents had deposed about the land owned by them in the village, where the land in issue was situated. Neither in the pleadings nor in the evidence it was ever alleged, that the respondents had lost their right, by selling the existing ownership. So much so, in the ground of this revision, it is not asserted,, that the respondents had ceased to be the owners of the property, subsequent to the jamabandi for the year, 1972. In the course of hearing of this petition, learned counsel for the petitioner was asked, as to whether the respondent had sold the property or have ceased to remain owners in the village, he could not give any satisfactory reply. All that he argued, was, that the respondents should have produced the last jamabandi and it was not for the petitioners, to either plead in evidence or cross-examination, on the point of ownership of respondents. The argument is devoid of any force. Once the documentary evidence was produced to prove that the pre-emptors did on land in the village and the vendees did not possess such qualification, the onus had shifted, upon the petitioners, to prove to the contrary or to prove that the pre-emptors had ceased to remain owners. Even otherwise, the absence of cross-examination as to the ownership of the pre-emptors, will lead to the presumption, that the petitioners had not challenged the statement of the pre-emptors, in examination-in-chief, regarding their ownership. During hearing of this petition, learned counsel, was specifically asked, as to whether the petitioners can produce, any subsequent revenue record, to show, that the respondents had ceased to be the owners by virtue of any subsequent sale, but the answer was not in affirmative and on the contrary, he tried to argue, that it was not the duty of the petitioners, to lead such evidence, as the respondents should survive on the strength of their on evidence. There is no cavil with the proposition, that the pre-emptors shall win on the strength of their on evidence but at same time it cannot be overlooked that the pre-emptors did produce documentary evidence as well as oral evidence to prove superior right, which was not rebutted nor any effort was made to create any dents therein. The evidence on record, being sufficient.
Respondents having proved their ownership in the village, the subsequent cessession of title having not been alleged or proved, learned Appellate Court was justified, in reversing the findings of learned trial Court, on the question of superior right of pre-emption. No misreading or non- reading of the evidence could be pointed out.
8. As regard the objection to the payment of Court fee, it is a settled rule, that no plaint can be rejected nor a suit can be dismissed, on the plea of insufficiency or improper valuation of the suit, till such time, the Court determines its valuation and require making up of deficiency. Reference can be made to PLD 1983 SC 227 and PLD 1984 SC 289. In the course of hearing of this petition, learned counsel for the petitioner was asked, as to the amount of Court fee, payable on the plaint.
He submitted, that Court fee was payable, at 15 times of the net profit, to the extent of land measuring 38 kanals 8 marlas while Court fee on value of land was to be paid on the value of one maria which was banjar. It was argued, that Court fee on the improvements should have been paid. It was observed by the learned Additional District Judge, that the deficiency in the payment of Court fee was made up by filing requisite fee and, therefore, there was no justification for rejecting the plaint. Even, according to the petitioners, the Court fee was paid subsequently. Record of trial Court reveals, that in the suit of Muhammad Shaft and others, the stamp papers of Rs.680/- and Rs.225/- were supplied by the pre-emptor. The deficiency had been duly made up, the learned Appellate Court, was justified, in reversing the findings of the learned trial Court and determining the suit as properly valued for Court fee and jurisdiction purposes.
9. The learned Appellate Court, on consideration of the evidence on record, and of the circumstances as noted supra, decreed the two suits, in the proportion of 522/1117 and 595/1117 shares, which findings have not been shown to be suffering from any mis-reading of the record or error of law.
10. Resultantly, these two revisions being without substance are dismissed, leaving the parties to share their on costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.