MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, with the leave of the Court, is directed against the judgment and decree passed by the High Court on 15-5-1998, whereby the appeal filed by the appellant, herein, was dismissed.
2. The precise facts, giving rise to the present appeal, are that a suit for pre-emption was filed by one Jewan Khan (who is now represented by respondents Nos. l to 10 as his legal heirs), in the Court of Sub-Judge Dadyal, on 24-9-1985, to pre-empt the sale-deed executed by Riasat Khan on 29-9- 1984, with regard to suit land measuring 6 Kanals, out of 10 Kanals and 9 Marlas, Survey No.63/1, Khewat No.39/34, Khata No.299/276, situate in village Amb, Tehsil Dadyal, District Mirpur, for a consideration of Rs.55,000.
3. In the written statement filed by the appellant-vendee various preliminary objections were taken.
An objection was taken to the effect that the valuation of the suit has not been fixed in a lawful manner, therefore, the suit was liable to be dismissed. Another objection was that the appellant -- vendee after purchasing the suit land had constructed a house in the said land of the value of Rs.2,00,000 as such the Court had no jurisdiction to try the suit. It was also pleaded in the written statement that the valuation of the suit purpose of jurisdiction and court-fee has not been determined in accordance with law.
4.After framing the issues the parties were given the opportunity to lead their evidence. At the conclusion of the . Trial the leaned Sub-Judge Dadyal dismissed the suit filed by the plaintiff- respondent on 31-1-1990, on the ground that on account of valuation of the suit the same was not triable by the trial Court. However, it was observed that the plaintiff-pre-emptor in addition to the consideration amount shall be liable to pay an amount of Rs.63,924 as improvements made by the defendant-vendee. An appeal filed by the plaintiff-pre-emptor before the District Judge was accepted vide judgment and decree dated 21-1-1991; and disagreeing with the finding of the Sub- Judge that on account of valuation of the suit the same was not triable by the trial Court, the learned District Judge opined that the suit was triable by the learned Sub-Judge and by accepting the appeal decreed the suit of respondent-plaintiff on payment of consideration amount of Rs.55,000 plus cost of improvements worth Rs.63,924 totally amounting to Rs.1,18,924. A appeal preferred before the High Court by the vendee-appellant was dismissed vide the judgment and decree, dated 15-5-1998, which are the subject of present appeal before us.
5.Arguing the case on behalf of appellant it was vehemently contended by Ch. Muhammad Sharif Tariq, the learned counsel, that the judgment and decree passed by the High Court and the District Judge were contrary to law and the learned Sub-Judge rightly dismissed the suit for pre-emption.
The learned counsel submitted that the trial Judge had no jurisdiction to entertain the suit as the valuation of the suit exceeded the pecuniary jurisdiction of the trial Court. The learned counsel pressed into service the submission that section 7(v)(d) of Court Fees Act bars the jurisdiction of the trial Judge as according to him the suit land is not a definite share of estate and is not separately assessed to Land Revenue. Hence according to the learned counsel the jurisdictional value should A have been determined according to the market value of the land wherein a house of the value of Rs.2,00,000 stands constructed. The learned counsel for the appellant strenuously argued that he has moved an application in this Court for appointing a Commission so that the Commission after the inspection of spot may submit his report with regard to the value or market value of the house. The learned counsel also pointed out that the learned Sub-Judge himself visited the house in question and determined its value as Rs.76,200 but at the time of passing the decree he agreed with the report of Overseer and committed an error by allowing cost of improvement to the tune of Rs.63,924.
6. On the other hand Raja Muhammad Siddique, the learned counsel for respondents, controverted the arguments advanced by the learned counsel for the appellant. The learned counsel submitted that the court-fee in pre-emption suit is to be fixed in accordance with the provisions of clause (v) of section 7 read with clause (e)(vi) of the said Act. In support of his contentions the learned counsel placed reliance on a Full Bench case of this Court titled Ghulam Hussain Shah v.
Hidayatullah Khan PLD 1981 SC (AJ&K) 55 and Sain v. Muhammad Din and others 1995 SCR 208. The learned counsel maintained that the High Court as well as the District Judge committed no error in decreeing the suit of the plaintiff. The learned counsel further contended that concurrent findings of fact recorded by the District Judge and the High Court, on proper appraisal of evidence, do not warrant any interference by this Court.
7.After hearing the respective contentions of the learned counsel for the parties, it may be stated that section 7(v) clause (d) reads as follows:- "(d)Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as abovementioned-the market-value of the land."
This provision of law in our humble view is not attracted in the present case for the simple reason that the entries in Jamabandi of the year 1969 attached with the file of the trial Court positively show that the land in question is assessed to land revenue and is out of a definite share of the vendor. Thus, the B aforesaid provision has no application in the present case. In our view the provisions applicable will be section 7, clause (e)(vi) which may usefully be reproduced below:- "(vi) to enforce a right of pre-emption ---In suits to enforce a right of pre--emption ---According to the value (computed in , accordance with paragraph (v) of this section) of the land, house or garden in respect of which the right is claimed. "
Paragraph (v) of section 7 reads as under:-- (v)for possession of lands, houses and arQ dens.--- In suits for the possession of land, houses and gardens-according to the values of the subject-matter; and such value shall be deemed to be--- where the subject-matter is land, and (a)where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue, and such revenue is permanently settled ten times the revenue so payable (b)where the land forms as an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently---five times the revenue so payable. "
8.In a case reported as Sain v. Muhammad Din and others 1995 SCR 208, dealing with somewhat similar proposition it was observed as under:-- "We may simply observe for the sake of guidance that in case the land is assessed to land revenue the court-fee is computed under clause 7(v)(a) and (b) and if not assessed to land revenue the court-fee is computed in accordance with section 7(v)(d) of section 7 of the Court Fees Act and valuation of the suit is determined under section 8 of the Suits.
Another observation also appears in the case titled Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 SC (AJ&K) 55), which is reproduced from page 59 and is io the following effect:- A cursory reading of section 8 will show that the suits covered by section 7 paras. (v), (vi) (pre- emption suits) and (ix) and (x), clause (d) are explicitly excluded from the operation of section 8.
Therefore, for determining the pecuniary jurisdiction in a pre-emption suit the proper section applicable will be section 3 of the Suits Valuation Act and the rules made thereunder. "
As the plaintiff-pre-emptor did not file the suit for possession of the house constructed in the suit land, the jurisdictional value shall not be determined on the basis of market value of the property, but the same shall be determined on the basis of revenue assessed on the land. The learned Sub- Judge by observing that the trial Court was not competent to hear the suit as its valuation was more than Rs.25,000 committed a legal error. The valuation of suit is not determined C on the basis of cost of improvements which are granted to a party making such r improvements. For the above reasons the contention raised by the learned counsel for the appellant that the suit was not maintainable before the trial Court and similarly the appeal before the District Judge was not competent is hereby repelled.
9. As regards the application moved in this Court by the appellant for appointing a Commission is concerned, the same also merits no consideration. In the instant case not only the Overseer inspected the spot and submitted his report regarding improvements to the tune of Rs.63,924 but he learned Sub-Judge also inspected the spot. Irrespective of the fact that in his estimation the improvements were to the tune of Rs.76,200 but he agreed with the report of the Overseer in the judgment given by him and awarded the cost of improvements to the tune of Rs.63,924. There is yet another factor which goes to the discredit of appellant. The appeal before the High Court was filed by the appellant, but he did not make any such prayer or raise the plea before the said forum.
Even in the memo of appeal before this Court no such plea was raised. In this view of the matter the aforesaid prayer made by the learned counsel for ,the appellant is disallowed.
10. We have noticed that the learned District Judge while passing a decree of pre-emption in favour of plaintiff-respondents, through inadvertence did not order the plaintiff to deposit the expenses incurred on the sale-deed either in the judgment or in the decree-sheet. The same illegality was committed by the High Court as it simply confirmed the judgment and decree passed by the District Judge, In the interest of justice we modify the judgment and decree of the District Judge and that of the High Court in terms that plaintiff-respondents shall get the decree of possession on the basis of their prior right of purchase of the suit land measuring 6 Kanals, out of 10 Kanals and 9 Marlas, comprising Survey No.163, Khewat No.39/34, Khata No.299/276, village Amb, Tehsil Dadyal, District Mirpur, on payment of Rs.55,000 as a consideration amount including the improvements worth Rs.63,924 totally amounting to Rs.1,18,924 plus the expenses incurred on the sale-deed in the Court of District Judge Mirpur on or before 4th January 1999, if not paid earlier, otherwise the suit shall stand dismissed.
11. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed without any order as to costs.