' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court, dated 23-9-1998, whereby the judgment and decree passed by the District Judge were set aside and that of the trial Court were affirmed.
2. The brief facts of the case are that land measuring 11 Kanals and 14 Marlas, comprising survey No,302, situate in village Tahi, Tehsil Hajira, was transferred by Muhammad Tufail, respondent No,2, in favour of Muhammad Khan and Nazir Muhammad Khan, appellants herein, for a consideration of Rs,1,20,000. Muhammad Sharif, respondent, filed a pre-emption suit in the Court of Sub-Judge, Hajira, alleging that the suit land was contiguous to the land owned by him and he has also right of way over the same, whereas the land owned by the defendants-appellants was situated at some distance. Thus, he sought a decree for possession on the basis of preferential right of pre-emption on payment of Rs,1,00,000 the price of the land which was actually alleged to have been paid by the vendees. The trial Court decreed the suit of the plaintiff-respondent on payment of Rs,1,20,000 the consideration of the suit land plus the expenses incurred on the execution of the sale-deed, (total Rs, 1 ,25 ,550). The appellants, herein, filed an appeal to the District Judge, inter alia, on the ground that the plaintiff-respondent had no right of prior purchase and, thus, was not entitled to the decree of pre-emption. The learned District Judge accepted the appeal holding that as the right of pre-emption on the basis of Property of the pre-emptor being contiguous to the land sold .Was not available at the time of the sale-deed, the decree in his favour was not sustainable and, thus, the same was set at naught. On appeal to the High Court by the respondent, it was held that in view of the averments made by the plaintiff-respondent in his plaint, he prayed for decree as being owner in the 'mahal' and, thus, was entitled to the same. It is against the aforesaid judgment and decree of the High Court that present appeal has been filed to this Court. .
3. A preliminary point was raised by the learned counsel for the respondent that in view of the valuation of the suit fixed in the plaint, direct appeal to this Court was not competent, rather a petition of leave to appeal should have been filed. After hearing the learned counsel for the parties, a larger Bench was constituted to dispose of the point as to whether a certificate with regard to the valuation of the disputed land from din High Court was necessary in view of the provisions contained in section 109 and Order XLV, rule 3 of the C.P.C. And a direct appeal without a certificate of fitness as envisaged under section 109 of the C.P.C. Read with rule 3 of Order XLV of the C.P.C., is not competent. Consequently, apart from the counsel for the parties, the senior members of the Bar, namely, Mr. Abdur Rashid Abbasi, Raja Muhammad Hanif Khan, Mr. M. Tabassum Aftab Alvi, Sardar Rafique Mahmood Khan and Kh. Shahad Ahmad, Advocates were called upon to assist the Court in resolving the question as to whether the said certificate under the aforesaid provisions of the C.P.C. Was, necessary, despite the enforcement of the Azad Jammu and Kashmir Interim Constitution Act, 1974 under which an appeal as of right has been provided under section 42(11)(d) and (e) if the value of the subject-matter is not less than Rs,50,000. Consequently, arguments were addressed by the counsel for the parties and the senior members of the Bar. It would be expedient first to resolve the question as to whether the certificate with regard to the valuation of the subject- matter is necessary even after the enforcement of the Interim Constitution Act, 1974. Mr. Abdur Rashid Abbasi, Advocate, has argued that in view of phrase 'subject to the provisions of this Act' occurring in subsection (2) of section 42 and, the provisions contained in section 57 of the Interim Constitution Act, according to which the provisions of Interim Constitution Act would override all other laws and would have effect notwithstanding the provisions of any law for the time being in force, the aforesaid provisions of C.P.C. So far as the same are found inconsistent with the .
Provisions contained in section 42, would he deemed to be non-existent. The learned counsel has maintained that under section 42(11)(d), if the amount or value of the subject-matter in the Court of first instance and also in appeal is not less than Rs,50,000, an aggrieved person has the right to file direct appeal; similarly, under clause (e) of section 42(11) if the judgment, decree or final order, involves directly or indirectly some claims or question in respect of like amount or value, and the judgment and decree or final order appeal from is varied or set aside, the appeal is competent to this Court as of right. The learned counsel has argued that there is no provision in the Constitution requiring a certificate where an appeal is provided in the Constitution as of right. He has maintained that the certificate of the High Court is only required under section 42(11)(f) of the Interim Constitution Act, if the case involves a substantial question of law as to interpretation of the Interim Constitution Act. Thus, the learned counsel has submitted that there is no question of obtaining a certificate with regard to the value of the subject-matter from the High Court in pursuance of the aforesaid provisions of C.P.C. He has further argued that the said provisions in C.P.C. Were valid before the enforcement of the Interim Constitution Act, 1974 and not thereafter.
Thus, the learned counsel has maintained that it was not necessary to obtain a certificate in a case which falls under section 42(11)(d) and (e) of the Interim Constitution Act and the provisions to the contrary contained in the C.P.C., would be deemed to have been repealed by necessary implication. Similarly, the learned counsel has submitted that in case of an appeal under section 54 of the Land Acquisition Act, the requirement of any such certificate, as stipulated under the aforesaid section, would also be not necessary after the promulgation of the Interim Constitution Act. The learned counsel has further .Submitted that the view taken in a case reported as Azad Government o1 the State of Jammu and Kashmir v. Kashmir Timber Corporation, Muzaffarabad (PLD 1978 SC (AJ&K) 42) on the point is not relevant to the case in hand because in that case the question of certificate under section 42(11)(f) was subject of consideration and not .a certificate where an appeal is competent as of right under section 42(11)(d) and (e), as in the present case.
The learned counsel has submitted that the aforesaid pro visions of C.P.C. Are not inconsistent with the provisions contained in section 42(11)(f) of the Interim Constitution Act and the compliance of the said provisions of C.P.C. Is not open to objection. The learned counsel has further argued that there is no limitation provided in the Supreme Court Rules for a direct appeal to this Court and, thus, the present appeal can be treated as petition for leave to appeal, if it is so needed and vice versa. The learned counsel has submitted following authorities in support of his contentions:-- ' In case reported as Sardar Abdur Rauf Khan v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad (1991 SCMR 2164), it has been observed that a right to file a direct appeal under sub-clause (d) of clause (2) of Article 185 of the Constitution of Pakistan, 1973, is distinct from a petition for leave to appeal under, clause (3) of Article 185, inasmuch as under the former provision, a party has a legal right to file a direct appeal, whereas there is no such legal right to obtain leave under clause (3) of Article 185; the period of limitation is also different, i,e, for filing a direct appeal, the period' of limitation provided is thirty days under Rule 2 of Order XII of the Supreme Court Rules, 1980, and for a petition for leave, the period of limitation is sixty days under Order XIII, rule 1 of the Supreme Court Rules, 1980. It was further observed that if a party loses his right to file a direct appeal because of the limitation, he may invoke Article 185(3) for a petition for leave to appeal, which the Supreme Court may either grant or decline either on the ground that the party should have availed of a direct appeal or for the reason that the petition for leave to appeal has no merits.
' In case reported as Chainnan, N.-W.F.P. 'Forest Development Corporation v. Khurshid Anwar Khan (1992 SCIVIR 1202), on the oral request of the counsel for the appellant, a time-barred appeal was treated as petition for leave to appeal thus, the same was reconverted into an appeal and disposed of as such observing that the question of limitation had lost its significance.
4. Ch. Muhammad Ibrahim Zia, Advocate, the learned counsel for the appellants, supported the contentions made by Mr. Abdur Rashid Abbasi, Advocate. He has contended that in the instant case, the value of subject-matter of the suit being more than Rs,50,000, direct appeal was competent as of right and there is no question of obtaining a certificate of valuation or fitness from the High Court under the aforesaid provisions of law. He has further argued that even otherwise an appeal can be treated as petition for leave to appeal and vice versa, especially so when there is no limitation provided in the Supreme Court Rules for such an appeal. He has referred to the following authorities in support of his contentions:- ' In case reported as Chairman, N.-W.F .1'. Forest Development Corporation v. Khurshid Anwar Khan (1992 SCMR 1202), the facts were that direct appeal was time-barred. The Supreme Court, on the oral request of the counsel for the appellant, treated it as a petition for leave to appeal and then decided it after reconverting the same into an appeal.
' In case reported as Commissioner of Income-tax, Muzaffarabad v. Messrs United Builders Corporation (1985 CLC 1102) (SC AJ&K), it was held that in view of subsection (2) of section 42 of the Interim Constitution Act, 1974, it was not necessary to obtain a certificate of fitness under section 66-A of the Income-tax Act, 1922, because after the enforcement of the Interim Constitution Act, the said provision regarding obtaining the certificate of the High Court has been impliedly repealed by section 42 of the Interim Constitution Act. While dealing with the matter, it was observed as under: ' The bare reading of subsection (2) makes it amply clear that jurisdiction can be conferred on the Supreme Court by or under any law provided it does not offend against the relevant provisions contained in the Interim Constitution Act. If it is conceded that the jurisdiction can be conferred on the Supreme Court by or under any law other than the Constitution Act, without having regard to the restrictions imposed by the expression 'subject to the provisions of this Act', used in subsection
(1) of section 42, it would render the said expression as redundant. It is a settled principle of rule of the interpretation of statutes that the interpretation rendering any provision of law as redundant or superfluous should be avoided. The interpretation of a statute must be such as would reconcile and harmonise the various provisions of law and not render the same as superfluous or redundant.
Thus, in our view, the jurisdiction on this Court can be conferred by or under any law as visualised under subsection (2) of section 42 only if the law conferring such jurisdiction is not inconsistent with any of the provisions of the Interim Constitution Act. As under subsection (12) of section 42, in cases not covered by subsection (11) of section 42, the appeal to this Court would only be competent if the Supreme Court grants special leave to appeal, the provisions contained in section 66-A(2) of the Income-tax Act and in section 137 of the Income-Tax Ordinance, 1979, so far as those pertain to the requirement of obtaining certificate . Of fitness from the High Court, stand impliedly repealed in view of the provisions contained in section 42 of the Interim Constitution Act of 1974. It follows from this that if a case is not covered by subsection (11) of section 42 of the Interim Constitution Act or any other provision of the said Act, an appeal to this Court shall be valid only if special leave to appeal is granted under subsection (12) of section 42 and not otherwise. Therefore, we are of the considered view that the present petition for leave to appeal is competent and the provisions contained in aforesaid statutes requiring the certificate of fitness from the High Court are no longer a valid law on the statute book of the Azad Jammu and Kashmir State. We are fortified in our view by a case reported of Income-tax, Lahore lV. Lmar Saigol (PLD 1975 Lah. 1558), wherein, in view of the provisions contained in Article 185(2) of the Constitution of Pakistan (1973), the requirement of obtaining certificate of fitness under section 66-A(2) of Income-Tax Act was held to have been impliedly repealed. The argument that the aforesaid authority is distinguishable because there was no provision in Article 185 of the Pakistan Constitution (1973) empowering the Legislature to confer jurisdiction on the Supreme Court of Pakistan, as is the case under section 66-A(2) of the Income-Tax Act, is fallacious not only because an identical provision did exist under Article 175(2) of the said Constitution but also because, as already pointed out, in view of the expression 'subject to the provisions of this Act', used in subsection (2) of section 42 of the Interim Constitution Act, 1974 the law offending against the Constitution has no validity. However, with profound respect which we have for the Judges we differ from the view taken in the aforesaid case that Article 175(2) of the Constitution of Pakistan (1973) was not an enabling provision but it was merely an exhibiting provision and as such Parliament was competent to confer jurisdiction on the Supreme Court of Pakistan only in matters specifically provided by the Constitution itself. We are of the view that Article 175(2) of the Pakistan Constitution (1973) does not put any such embargo on the powers of Parliament to confer jurisdiction on the Supreme Court even in cases not specifically envisaged in the said Constitution provided that law conferring jurisdiction does not offend against the provisions contained in Article 185 or against any other provision of the said Constitution."
' In case reported as Begum Agha Abdul Karim Shorish Kashmiri v. Government of West Pakistan (PLD 1969 Lah. 438), it has been held that if subordinate legislation is in conflict with the Constitutional provisions and the inconsistency cannot be reconciled, then the subordinate legislation in so far as it is repugnant to the Constitutional provisions, cannot be given effect.
5. Raja Muhammad Hanif Khan, Sardar Rafique Mahmood Khan, Mr. M. Tabassum Aftab Alvi and Kh.
Shahad Ahmad, Advocates, also agreed with the contentions made by Mr. Abdur Rashid Abbasi to the effect that the certificate of valuation under the aforesaid provisions of C.P.C. For filing an appeal to this Court was not necessary after the enforcement of the Interim Constitution Act.
6. Sardar Muhammad Sayab Ithalid, Advocate, the learned counsel for the respondent No,1, did not seriously controvert the proposition that the certificate in the instant case for filing an appeal under the provisions ; of C.P.C. Was not necessary. However, he has submitted that in view of the valuation of the suit, direct appeal to the Supreme Court was not competent and that the mere fact that consideration of the sale-deed was less than Rs,50,000 would not entitle the appellants, herein, to file direct appeal. The aforesaid point raised by the learned counsel for the respondent would be dealt with when we deal with the merits of the case at a later stage.
7. We have given due consideration to the arguments. It may be pointed out that the view taken in case reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation, Muzaffarabad (PLD 1978 SC (AJ&K) 42) with regard to the requirement of the certificate under the aforesaid provisions of the C.P.C. Is not relevant to the case in hand because the question in that case pertained to section 42(11)(0, whereas the certificate by the High Court in case of filing an appeal under clause (1) has been envisaged but this is hot so where an appeal has been provided as of right under clauses (d) and (e) of section 42(11) of the Interim Constitution Act. It may be pointed out that expression 'subject to the provisions, of this Act' appearing in section 42(2) read with section 57 of the Interim Constitution Act, leaves no doubt that any provisions with regard to the appeals to this Court which are inconsistent with the provisions contained in section 42 would have no effect and would be deemed to have been repealed by implication. As an appeal has been provided as of right in cases falling under clauses (d) and (e) of section 42(11), mere is no question of obtaining a certificate of fitness from the High Court under the provisions of any other law. There is no such requirement under the Supreme Court Rules either to obtain a certificate of fitness or valuation from the High Court for filing an appeal to this Court. It may also be pointed out that sections 109 and 110 of the C.P.C. And the provisions contained in rule 3 of Order XLV of the C.P.C. Were enacted when the Interim Constitution Act, 1974 was not promulgated in Azad Kashmir. After the enforcement of the said Constitution Act, any provision which is inconsistent with the provisions contained in section 42 or for that matter with any other section of the Act, the same cannot be given effect to. As has been held by this Court in case reported as Commissioner of Income-tax, Muzaffarabad v. Messrs United Builders Corporation (1985 CLC 1102)
(SC AJ&K), referred to above, that requirement of a certificate under section 66-A of the Income- Tax Act was no more necessary after the promulgation of the Interim Constitution Act and .Said provisions would be deemed to have been repealed by necessary implication,
8. The next question arises as to whether in the present case, direct appeal to this Court is competent. A bare reading of clauses (d) and (e) of section 42(11) of the Interim Constitution Act reveals that if the amount or value of the subject-matter in dispute is not less than Rs,50,000 in the Court of first instance and in the appeal, direct appeal is competent to this Court and it is not necessary to file a petition for leave to appeal under section 42(12) of the Interim Constitution Act.
Ch. Muhammad Ibrahim Zia, Advocate, the learned counsel for the appellants, has contended that expression 'value of the original suit, used in section 36 of the Courts and Laws Code, 1949, is not synonymous with the expression 'value of the subject-matter' which has been employed in section 42(11)(d) of the Interim Constitution Act. In the former case, the value of the suit is to be determined according to the provisions of Suits Valuation Act and in many cases such value of the suit for the purposes of jurisdiction is fixed notionally on the basis of the land revenue etc. As has been done in the present case. However, the value of the subject-matter envisaged in section 42(11)(d) means the actual market value of the subject-matter and not the value of the suit which is notional value fixed under the Suits Valuation Act. In the instant case, the plaintiff-respondent has admitted in his suit that the market value of the suit land is Rs,1,00,000. Thus, direct appeal to this Court was competent as of right under the provisions contained in section 42(11)(d) of the Interim Constitution Act. The learned counsel has strenuously argued that notional value of the suit which is fixed in cases of pre-emption in view of the provisions contained in the Suits Valuation Act and the rules framed by the Government have nothing to do while determining the value of the subject-matter envisaged in the Interim Constitution Act. The learned counsel has submitted following authorities in support of his contentions:-- ' In case reported as Messrs. M.Y. Malik & Company v. Messrs Splendours International (1997 SCMR 309), it was observed that as the High Court has finally determined the question as to what amount the judgment-debtor had to pay or was liable to pay to the decree-holder, direct appeal to the Supreme Court was competent because the executing Court could not go into the question with regard to the liability of the judgment-debtor.
' In case reported as Kuppanna Gounder v. Peruma Gounder (AIR 1961 Mad. 511), it was observed that Article 192(1)(a) of the Indian Constitution read with section 110 of the C.P.C. And Order 45 rule 8, party applying for certificate can show higher and real value of the subject-matter then the one adopted in the plaint and the provisions of section 11, Order 7, rule 1 and Order 8, rule 2 and others would not preclude him to do so.
' In case reported as Ghulam Nabi v. Seth Muhammad Yaqub (1981 SCMR 889), it has been held that as the value of the subject-matter was more than Rs,1,35,000, the appeal to the Supreme Court was competent as of right under Article 185(2) of the Constitution of Pakistan.
' In case reported as Wajid Ali v. Syed Sajid Ali (1985 SCMR 401), it has been held that the constitutional right of direct appeal to the Supreme Court under Article 185 sub-clause (d) or (e) cannot be whittled down by section 39 of the Arbitration Act. It has been further observed that expressions 'like amount' or 'value' appearing in Article 185(2)(e) of the Constitution of Pakistan clearly refer to the amount or value, i,e,, Rs,50,000 and not necessarily to two stages, stage of Court of first instance and the Court of appeal.
' In case reported as Molugu Lakshminarasimhacharyulu v. Marisetti Ratnam (AIR 1949 Madras 739), it has been held that a petitioner in a petition for leave to appeal under section 110 of the C.P.C. Is not precluded from showing that the real value of the subject-matter in appeal is different from the value on which the court-fee was paid.
9. Sardar Sayab Kimlid, Advocate, the learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that the value of the subject-matter envisaged under section 42(11,)(d1 of the Interim Constitution Act would be deemed to be the value of the suit fixed in the plaint and not the real market value of the suit land.
He has contended that as the jurisdictional value of the suit has been fixed as Rs,100 in the plaint, a petition for leave to appeal should have been filed instead of filing direct appeal to this Court. The learned counsel has maintained that there is no difference in the connotation of the expression 'value of the suit' employed in the relevant provisions of the Suits Valuation Act and section 36 of the Courts and Laws Code, 1949 and the expression 'the value of subject-matter' used in section 42(11)(d) of the Interim Constitution Act. The learned counsel has cited following authorities in support of his Contentions:--
(1) Mian Karam Ilahi v. Muhammad Bashir (PLD 1949 Lah. 8),
(2) Ajiruddin Mondal v. Rahman Fakir (PLD 1961 SC 349),
(3) Ghulam Hussain Shah v. Hiayat Ullah Khan (PLD 1981 SC (AJ&K) 55),
(4) Ilahi Bakhsh v. Mst. Bilqees Begum (PLD 1985 SC 393), and
(5) Wazir Muhammad v. Abdul Aziz (1981 CLC 814).
10. The perusal of the abovementioned authorities would reveal that none of the same is relevant to the proposition involved in the present case. In the aforesaid cases, the question of 'valuation of the suit' for the purpose of jurisdictional and the Court-fees in the trial Court was subject-matter of consideration in view of the provisions contained in sections 3 and 8 of the Suits Valuation Act read with section 7 of the Court Fees Act. In some of the said cases the question was as to whether the valuation of the suit should be same for the purpose of jurisdiction and the Court-fees and what would be the forum of appeal against a decree passed by the trail Court, i,e, whether appeal would lie to the District Judge or to the High Court. None of the authorities cited above deal with the meanings and the connotation of expression 'value of the subject-matter of the dispute' employed in section 42(11)(d) of the Interim Constitution Act, 1974. Obviously, none of the above cited authorities deal with the question as to whether the value of the suit for the purpose of jurisdiction or Court-fees can be regarded as 'the value of the subject-matter of the dispute', as envisaged in the aforesaid Constitutional provisions. Thus, the abovementioned authorities do not substantiate the contention of the learned counsel for the respondent that expression 'value of the subject- matter of the dispute' occurring in section 42(11)(d) of the Interim Constitution Act would be which is fixed as a jurisdictional value of the suit under sections 3 and 8 of the Suits Valuation Act or rules famed thereunder.
11. The learned counsel for the respondent has also cited following authorities to support his contention that the expression 'the value of the subject-matter of the suit' employed in section 42(11)(d) does not mean the market value of the subject-matter: ' In case reported as Ghulam Seth Muhammad Yaqub (1981 SCMR 889), it has been held that as the value of the subject-matter of appeal in the Court of first instance, in the High Court and in the Supreme Court was Rs,1,35,000, the appeal was competent as of right under Article 185 of Pakistan Constitution, 1973. Consequently, the petition for leave to appeal was treated as an appeal observing that as there was no period of limitation prescribed in Supreme Court Rules or the Limitation Act for direct appeal, the petition for leave to appeal could be treated as an appeal. It is evident from the facts of the authority that it negates the contention of the learned counsel for the respondents rather supports the same.
' Seth Shivrattan G. Mohatta v. Messrs. Muhammadi Steamship Co. Ltd. (PLD 1965 SC 649), the facts were that the High Court, in a letters patent appeal, passed an order whereby the suit dismissed in default was restored. The High Court also issued a certificate that the case was fit for further appeal to the Supreme Court. It was observed that the view adopted by the Judges of the High Court in issuing the certificate was erroneous because an order restoring a suit in law cannot be regarded as affecting the subject-matter of the suit; the plaintiff was merely allowed to pursue his claim in the suit without affecting the merits of the case set up by the defendant. It was further observed that if the suit was not restored, no indefeasible right in the subject-matter of the suit vested in the defendant because in law, the plaintiff can raise same claim by way of defence in any subsequent suit between the parties. Therefore, it was observed that the mere fact that the value of the subject-matter was more than Rs,15,000 did not justify to issue certificate to the appellants under Article 158(1)(b) of 1956 Constitution. Obviously, this authority is distinguishable, because it deals with a case where the appeal was filed against the order of the restoration of the suit which was dismissed in default and not against an order passed on the controversy between the parties in the original suit.
12. Thus, after giving due consideration to the provisions contained in section 42(11)(d) of the Interim Constitution Act and the authorities cited at the Bar, we are of the view that there is hardly any room for the argument that in the instant case instead of direct appeal, a petition for leave to appeal should have been filed. It may be pointed out that ' the value of the suit' fixed in the plaint does not have the same meanings as the value of the subject-matter' employed in section 42(11)
(d) of the Interim Constitution Act. Hence, we are of the considered view that direct appeal in the instant case was rightly filed by the appellants.
13. The next question which falls for determination is as to whether an appeal can be treated as a petition for leave to appeal. As has been seen from the authorities relied upon by the learned counsel for the appellants, and the one reported as Water and Power Development Authority v.
Sadullah Khan and others (1999 SCMR 319), an appeal can be treated as petition for leave to appeal and vice versa. In the instant case, direct appeal was filed within fifteen days of the judgment of the High Court and the period of limitation for filing the petition for leave to appeal is sixty days. Therefore, there is no predicament in converting the present appeal into the petition for leave to appeal and deciding the same as such, if at all it would have been found that the appeal was not competent.
14. The next question which needs resolution is as to whether the plaintiff- respondent has any preferential right of preemption. As has already been pointed out, the plaintiff seeks the decree on the basis of preferential right of pre-emption on the ground that he owns the land contiguous to the suit land. The learned counsel for the appellants has contended that a right of preemption was not available in the instant case on the basis of contiguity of the land and, thus, the pre-emption suit filed by the plaintiff-respondent was rightly dismissed by the District Judge. The learned counsel has submitted that the High Court was not justified to decree the pre-emption suit filed by the plaintiff-respondent on the ground that he was owner in the 'mahal'. The learned counsel has argued that a ground which is not alleged in the plaint in a pre-emption case, cannot be made basis for a decree of preemption. Thus, the learned counsel has argued that as the pre-emption decree was not sought on the basis of being owner in the 'mahal', no such decree can be passed in favour of the plaintiff even if it is assumed for the sake of argument that the plaintiff is owner in the 'mahal' ; the learned counsel has strenuously argued that the High Court has committed an error in holding that the word 'mahal' used in section 14 of the Right of Prior Purchase Act merely implies that the land owned by the pre-emptor must be contiguous to the land sold. The learned counsel has argued that generally the word 'mahal' is synonymous with word 'estate' used in the Punjab Pre-emption Act and in the Land Revenue Act. The learned counsel has submitted that 'mahal' would mean an area which has been treated as a one entity while assessing the land revenue of such an area. He has maintained that generally 'village' or 'mauza' or 'estate' are assessed to land revenue treating the same as one entity or unit. Thus, according to the learned counsel for the appellants, as it has not been the case of the plaintiff that the land owned by him and the suit land were treated as one entity while assessing cannot be said the relise Were' situatalci The same 'estate, Village% "thauza Thus, according to the learned counsel`, it :cannot be accepted by any stretch of imagination that the plaintiff-respondent, was, : owner in the 'mahal'. The learned counsel has cited Abdul Rehman v. Muhammad Afsar Khan (PLD 1978 SC (AJ&K) 156), in support of his contentions wherein while dealing with the connotation of 'mahal' as used in the Prior Purchase Act, it was observed that according to the Concise Dictionary containing Urdu words with English meaning by Dr. D. Parasad, it means as under:-- "'A mahal means--
(a) Any local area held under a separate engagement for the payment of revenue; provided that
(1) If such area counts a single village or portion of village, a separate record of rights has been framed for such village or portion.
(2) If such area consists of two or more villages, a separate record of rights has been framed for the entire area, or for each of the villages or portions of villages included therein.
(b) Any revenue-free area which separates record-of-rights has been famed.'
' The word 'estate' under sections 3(1), 4(9)(i) of the Land Revenue Act has been given statutory meaning which is:-- 'estate' means any area
(a) for which a separate record of rights has been made; or
(b) which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed; or
(c) which the Provincial Government may, by general rule or special order, declare to be an estate.
' The plaint filed in this case does not disclose that the pre-emptor appellant had claimed the right of prior purchase on the basis of his being an owner of the Mahal. It is not alleged either, in the plaint or elsewhere that the vendee does not belong to the community of that village or does not form integral part of that community or is not owner of the Mahal in the village. If both he vendee and pre-emptor enjoy equal status in that case the question of pre-emption would not arise."
' Sardar Sayab Khali& Advocate, the learned counsel for the respondent, has referred to an unreported case of the High Court entitled Muhammad Hussain v. Muhammad Hussain (Civil Appeal No,30 of 1997, decided on 24-6-1998) wherein it has been held that as in the 'naqsha tatima', placed on the record, the property owned by the plaintiff was adjacent to the property sold, the plaintiff would be deemed to be owner in 'mahal' . It may be observed that the view taken in this authority of the High Court is identical to one which has been taken in the case in hand. As would be instantly seen, the mere fact that the property owned by the plaintiff was adjacent to the property sold, is not sufficient to hold that the said lands are situated in the same 'mahal'. The learned counsel has controverted the contention of the learned counsel for the appellants that the fact that the land owned by the plaintiff-respondent was contiguous to the suit land would not imply that the plaintiff-respondent was owner in the 'mahal'. The learned counsel has referred to section 14 of the Right of Prior Purchase Act and has submitted that the mere fact that the suit land or the land owned by the plaintiff-respondent situate in different villages would not mean that the plaintiff-respondent was not owner in 'mahal' as stipulated under section 14 of the Right of Prior Purchase Act. He has argued that the word 'village' does not mean 'maltal. Or 'estate' as envisaged in the Right of Prior Purchase Act and the Punjab Pre-emption Act. The learned counsel has contended that the High Court has rightly come to the conclusion that the land owned by the plaintiff-respondent being adjacent to the suit land would be deemed to be situated in the same 'mahal'. Thus, according to the learned counsel, the judgment of the High Court does not suffer from any legal infirmity. The learned counsel has referred to the commentary on Land Revenue Act, 1967, wherein a distinction has been made in the words 'village' and 'estate'. The relevant part of the commentary is reproduced as under:-- " 'Estate' is defined by Mr. Thomson as 'any parcel or parcels of land which may be separately assessed with the public revenue'. In the Punjab Land Revenue Act, 1871 estate mean 'a village or other local area with which a separate settlement is made'. According to the definition given in the present Act estate means an area for which either a separate record-of-rights has been prepared or which has been treated as a separate unit for purposes of assessment, or which the Board of Revenue has by general rule or special orders, declared to be an estate. Estate is a legal expression and forms the unit of revenue assessment and administration. The fundamental element in the definition is the separate assessm ent. A separate unit of assessment, must, as a matter of course, have a separate record-of rights.
'Estate' and 'village' - distinguished.- We invariable come across-with two vernacular terms --- ma'am and mahal in revenue administration and it seems necessary to distinguish these two terms. Mauza or deh is usually translated 'village' and the English equivalent of mahal is estate.
'Village' is not defined in this Act. It connotes in a popular sense that we call Mauza, Gaon or Pind in the Punjab. It is 'a parcel or parcels of lands having a separate name in the Revenue Records with known limits."
16. The perusal of the authorities cited by the learned counsel for the appellants and the commentary on Land Revenue Act clearly shows that the question that two pieces of land are situated in the same 'estate' or 'mahal' or not is to be determined in view of the fact as to whether such pieces of land were treated as one entity for assessing the lana revenue. Generally, the word 'mahal' has the same meaning as 'estate' but it is not always necessarily to be so. However, the fact remains that it was necessary for the plaintiff to prove that the land owned by him and the suit land were assessed to land revenue treating the same as one entity or unit, i,e,, 'mauza', 'village', 'estate' or 'tnahal'. As has already been pointed out that it was neither the case of the plaintiff- respondent nor there is any evidence in that regard. Hence, we have no hesitation in holding that the High Court has committed an illegality in vacating the judgment and decree passed by the District Judge and confirming that of the trial Court.
' In the light of what has been stated above, we accept the appeal, set aside the judgments and decrees passed by the High Court and the trial Court and restore that of the District Judge.
Consequently, the preemption suit filed by the plaintiff-respondent stands dismissed with costs.
' BASHARAT AHMAD SHAIKH, agree with the judgment of the learned Chief Justice, but would like to add a few words by way of an additional reason for overruling the objection that a direct appeal in this. Court is not maintainable without a certificate of valuation issued by the High Court. This objection is based on the precedent case of this Court which is reported as Azad Government of the State of Jammu and Kashmir and 5 others v. Kashmir Timber Corporation Muzaffarabad and 5 others (PLD 1978 SC (AJ&K) 42). This judgment has been differentiated by the learned Chief Justice.
' The objection is that a 'direct appeal is not maintainable unless it is accompanied by a valuation certificate issued by the High Court. It is based on sections 109 and 110, Order XLV of the Civil Procedure Code. The objection is based on the assumption that the above referred provisions are in force in Azad Jammu and Kashmir and it is also assumed that the words "Supreme Court" are to be read in the text of the said provisions. However, my view is that both these provisions are not in force in Azad Jammu and Kashmir and in any case the words "Supreme Court" do not find mention in them.
' To begin with it is necessary to reproduce these provisions in the shape in which these are printed in available books: "109. When appeals lie to the Supreme Court.--- Subject to such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of Pakistan, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court.
(a) from any judgment, decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction;
(b) from any judgment, decree or' final order passed by a High Court in the exercise of original civil jurisdiction; and
(c) from any judgment, decree or final order, when the case, as hereinafter provided, is certified to be a fit one for appeal to the Supreme Court.
110.- Value subject-matter --- In each of the cases mentioned in clauses (a) and (b) of section 109, the amount or value of the subject-matter of the suit in the Court of first instance must be twenty thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to the Supreme Court must be the same sum or upwards. Or the judgment, decree or final order must involve, directly, some claim or question to or respecting property of like amount or value.
And where the judgment, decree or final order appealed from affirms the decision of the Court immediately below the Court passing such judgment, decree or final order, the appeal must involve some substantial question of law."
' ORDER XLV ' Appeals to the Supreme Court
1. "Decree" defined.--- In this Order, unless there is something repugnant in the subject or context, the expression "decree" shall include a final order.
2. Application to Court whose decree complained of.--- Whoever desires to appeal to the Supreme Court shall apply by, petition to the Court whose decree is complained of.
3. Certificate as to value or fitness.---(1) Every petition shall state the grounds of appeal and pray for a certificate either that, as regards amount or value and nature, the case fulfils the requirements of section 110, or that it is otherwise a fit one for appeal to the Supreme Court."
' In Azad Jammu and Kashmir Civil Procedure Code was adopted in end of March 1948 by a resolution of the Cabinet, which at the relevant time enjoyed legislative powers in addition to executive powers. The phraseology used by the resolution was as follows: "Resolution No, 279.---As recommended by the Secretary Law and Order, Azad Kashmir Government in his memorandum, dated the 22nd March, 1948, (Appendix 'C') the following enactments will come into force in Azad Kashmir territory as they are in force in the West Punjab and they shall also be deemed to have been in force in the liberated territory as far as practicable and subject to the provisions of any other law for the time being in force.
(1) The Code of Criminal Procedure.
(2) The Penal Code.
(3) The Evidence Act.
(4) The Arms Act.
(5) The Code of Civil Procedure.
(6)
(7)
(8)
(9)
(10)
' Rest of the. Recommendations contained in the memorandum referred to above (Appendix 'C') from items 3 to 5 are accepted.
' It will be seen that Civil Procedure Code was enforced in Azad Jammu and Kashmir in the shape in which it was in force in West Pakistan and that also "as far as practicable".
' In March 1948 the relevant provisions of Civil Procedure Code were in force in West Punjab, in the following shape.
'Appeals to Kin in Council
109. When appeals lie to King-in Council.- Subject to such rules as may, from time to time, be made by His Majesty in Council regarding appeals from the Courts of Pakistan, and to the provisions hereinafter contained, an appeal shall lie to His Majesty in Council.
(a) from any decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction;
(b) from any decree or final order passed by a High Court in the exercise of original civil jurisdiction; and
(c) from any decree or final order, when the case, as hereinafter provided, is certified to be a fit one for appeal to His Majesty-in Council.
110.- Value of subject-matter.--- In each of the cases mentioned in clauses (a) and (b) of section 109, the amount or value 6t the subject-matter of the suit in the Court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty-in-Council must be the same sum or upwards or the decree or final order must involve, directly, some claim or question to or respecting property of like amount or value, and where .The decree or final order appealed from affirms the decision of the Court immediately below the Court passing such, decree or final order, the appeal must involve some substantial question of law.
' ORDER XLV ' Appeals to King-in-Council
1. "Decree" defined.--- In this Order, unless there is something repugnant in the subject or context, the expression "decree" shall include a final order.
2. Application to Court whose decree complained of.--- Whoever desires to appeal to His Majesty- in Council shall apply by petition to the Court whose decree is complained of.
3. Certificate as to value or fitness.- (1) Every petition shall state the grounds of appeal and pray for a certificate either that, as regards amount or value and nature, the case fulfils the requirements of section 110, or that it is otherwise a fit one for appeal to His Majesty-in Council."
' In 1948 there was Federal Court in Pakistan which did not find mention in the Civil Procedure Code.
It stood constituted under section 200 of the Government of India Act, 1935. Appeals from High Courts were maintainable before the Federal Court under section 205 of the Government of India Act, 1935. Under section 208 of the same Act an appeal was maintainable before His Majesty in- Council from judgments of the Federal Court for example case reported as North-West Frontier Province v. Suraj Narain Anand (PLD 1949 PC 1). Appeals were also maintainable directly to His Majesty-in Council from judgments of the High Court for example case reported as Beli Ram and Brothers and others v. Chaudhri Muhammad Afzal and others (PLD 1949 PC 8) and case reported as Muhammad Jan and another v. Rafi-ud-Din and others (PLD 1949 PC 18). Appeals to His-Majesty- in-Council were mentioned in sections 109, 110, and order XLV of the Civil Procedure Code. Two matters became clear from the above; firstly the Federal Court was not mentioned in the Code, and secondly that Civil Procedure Code came into force in Azad Jammu and Kashmir "as. In force in the West Punjab" and "as far as practicable" the provisions relating to King-in-Council did not come into force in Azad Jammu and Kashmir. Supreme Court was constituted in Pakistan on 23rd March, 1956, the date on which the Constitution of Pakistan 1956 came into effect. Still in Civil Procedure Code the provisions relating to King-in-Council continued to be in force till 24th January, 1961 when "Central Laws (Adaptation)" Order, 1961 (President's Order No,1 of 1961) came into force. It was then that all references in the Civil Procedure Code to "His Majesty-in-Council and King in Council" were retrospectively substituted by the words "Supreme Court" with effect from 23rd March, 1956. Supreme Court in Azad Jammu and Kashmir was constituted in 1975. There is no provision in resolution No 279 that future amendments in Pakistan will automatically come in force in Azad Jammu and Kashmir. In fact such a provision could not have been legislated because future law cannot be adopted. As far as valuation is concerned, Order XLV of Civil Procedure Code, as applicable in West Punjab at the relevant time, visualized appeal before the King-in-Council if the value of the subject-matter was Rupees ten thousand or upwards. This provision, in any case, was inconsistent with the provision of section 42 of the Azad Jammu and Kashmir Interim Constitution Act which provides appeal as of right if the value of the subject-matter is Rupees fifty thousand. Thus, it is clear that sections 109 and 110 as well as Order XLV never came into force in Azad Jammu and Kashmir. Therefore, any objection based on these provisions has to be rejected.
' If from any stretch of imagination it may be assumed that sections 109, 110 and Order XLV of the Civil Procedure Code were applicable to the Supreme Court, these provisions would be inconsistent with the provisions of section 42 of the Azad Jammu and Kashmir Interim Constitution Act as has been held by the learned Chief Justice. On this point there can be no two opinions that provisions of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 override the aforementioned provisions of the Code of Civil Procedure.
' When I turn to the Kashmir Timber Corporation case I find that it was specifically held as follows:-- "In view of this we hold that as soon as the Judicial Board ;vas established the application of Order XLV, Rule 3, Civil Procedure Code became practicable ever if it were not so at the time of passing of Resolution No,279."
' Rule 3 of Order XLV also relates to valuation of suit and does not deal only with certificate of fitness that the case involves interpretation of the Constitution Act. Rule 3 reads as follows:-- "Certificate as to value or fitness.---
(1) Every petition shall state the grounds of appeal and pray for a certificate either that, as regards amount or value and nature, the case fulfils the requirements of section 110, or that it is otherwise a fit one for appeal to the Supreme Court.
(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted."
' Therefore, the argument advanced by Mr. Abdul Rashid Abbasi that Kashmir Timber Corporation case only applies to cases which involve interpretation of the Constitution cannot be accepted. If judgment in Kashmir Timber Corporation case occupies the field then no appeal to the Supreme Court is possible unless a valuation certificate is obtained from the High Court. It appears that this is the precise reason why no limitation is provided for in the Azad Jammu and Kashmir Supreme Court Rules for filing direct appeal in this Court. The only limitation prescribed in the said rules is thirty days commencing from the date on which the High Court issues a certificate. 1 would, therefore, hold that Kashmir Timber Corporation case, so far as it relates to applicability of sections 109, 110 and Order XLV to appeals to this Court, does not lay down good law.
' As already stated, I agree that the appeal may be accepted with the result that pre-emption suit filed by the respondents stands dismissed with costs.