MUHAMMAD REAZ AKHTAR CHAUDHRY, J.- This appeal is directed against the judgment and decree of learned District Judge, Mirpur dated October 21st, 1995, whereby the appeal preferred by the appellant was dismissed and the judgment and decree passed by the learned Additional Sub- Judge, Was maintained.
2. The relevant, and necessary facts for the disposal of the instant appeal are, that the respondent No. 1 (plaintiff) brought a suit for possession on the basis of right of prior purchase, before the Court of Additional Sub-Judge, Mirpur. It was claimed that the land measuring one kanal out of one kanal fourteen marlas comprising survey No. 2149/min, situated in village Sahang, Tehsil and District Mirpur, was alienated by the defendant No. 2 (vendor), to the appellant-vendee in lieu of Rs.70,000/-. In order to defeat the right of pre-emption, wrongly Rs.1,30,000/- was incorporated in the sale-deed. It was also asserted by the plaintiff-respondent that the market price of the land was also Rs. 70,000/-. The plaintiff-respondent claimed the prior right of purchase on the following grounds:-
(i) that he is real brother of vendor-defendant;
(ii) that he is co-sharer and owner in the village; and
(iii) that he has common path with the defendants whereas defendant-vendee is neither owner in the village nor co-sharer.
3. The suit was contested by the present appellant-vendee. The learned Additional Sub-Judge, vide judgment and decree dated May 4, 1995 decreed the suit. Feeling aggrieved from the aforesaid judgment and decree, the appellant filed an appeal before the learned District Judge Mirpur, who dismissed it. Now the instant appeal has been filed against this decree of the learned District Judge.
4. Haji Muhammad Zakriyya Bhatti, the learned Counsel for the appellant, argued that the learned Additional Sub-Judge had no jurisdiction to hear the instant suit. He contended that the value for the purposes of jurisdiction, was not properly determined by the plaintiff-respondent. He contended that in the instant case, the value for. The purposes of Court fee and jurisdiction was to be fixed under Section 7(v)(d) of the Court Fees Act, and Section 3 of the Suits Valuation Act. He submitted, that the land in dispute was neither a definite share, nor it was paying any annual revenue to the Government, therefore, the value for the purposes of the Court-fee and jurisdiction was to be fixed on the basis of market value of the land. He also referred Section 3 of the Suits Valuation Act and submitted that in the preset case, the value for the purposes of jurisdiction was to be fixed under the Rules framed under Section 3 of the Suits Valuation Act (hereinafter to be referred as Rules). He referred the Rules and submitted that according to the Rules, the value for the purposes of jurisdiction was to be fixed on the basis of the market value of the land. He also contended that Rule 2(d) was applicable in the instant case, because neither the land was ever assessed to the revenue, nor it was a definite share. The value for the purposes of jurisdiction and Court fee was to be fixed on the basis of the market value of the land. He submitted that the market value of the land was Rs.1,30,000/- while according to plaintiff, the market price of the land was Rs.70,000/- so, the learned Additional Sub-Judge had no jurisdiction to adjudicate upon the suit.
The basic decree passed by the learned Additional Sub- Judge was illegal and without any jurisdiction.,
5. While controverting the arguments of the learned Counsel for the appellant, Ch. Muhammad Younis Arvi, the learned Counsel for the respondents, argued that the judgments of learned District Judge and Additional Sub-Judge was based on sound, sagacious and .Tenacious reasonings which warrant no interference. He submitted that the land was assessed to the revenue and it was definite share. He referred the statement of the Office Quanoongo and submitted that the land in dispute was assessed to the revenue. He submitted that the judgment of both the Courts below, are quite in accordance with law.
6. I have heard the learned Counsel for the parties, perused the relevant record and given my utmost muse to the respective arguments advanced by the learned Counsel for the parties.
7. The primary question requiring determination in the instant case is whether the value for the purposes of jurisdiction and Court-fee was fixed properly?
Content No. 8 of the plaint contained; " that the value of the suit for the purposes of jurisdiction was fixed sixty times of "ain-ul-mal" and the value for the purposes of the Court fee, was thirty times and the same is. Exempted. "
This content did not clarify that how much was the value of the suit for the purposes of the jurisdiction and Court-fee. This content of the suit is vague. It was the fundamental duty of the plaintiff-respondent to fix the value of the suit for the purposes of the jurisdiction and-the Court- fee, according to the provisions of the Court Fees Act and the Suits Valuation Act. In the instance case, the Counsel for the plaintiff did not keep in consideration the provisions of the Court Fees Act and the Suits Valuation Act while determining the value of the suit for the purposes of the jurisdiction and the Court-fee. In pre-emption suits, the value for the purposes of the Court-fee was to be fixed under Section 7(vi) of the Court Fees Act which reads as under:- "(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. "
The aforesaid provision contained that the value for the purposes of the Court Fee is to be fixed under Clause (v). I would like to reproduce clause (v)' which is as under:- "(v) For possession of lands, houses and gardens:- In suits for the possession or land, houses and gardens-according to the value 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 definite share of an estate; paying annual revenue to the 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 and entire estate, or a definite share of an estate, paying Annual revenue to Government, or forms part of the estate and is recorded as aforesaid; and such revenue is settled, but not permanently-five times the revenue so payable;
(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 the 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 amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood;
(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 above-mentioned-the market value of the land.
Explanation:- The word 'estate' used in this paragraph means any land subject to the payment of revenue, for which the proprietor or farmer or raiyat shall have executed a separate engagement to Government which in absence of such engagement, shall have been separately assessed with Revenue;
(e) For houses and gardens Where the subject-matter is a house or garden-according to the market value of the house and garden;"
While the value for the purposes of the jurisdiction was to be fixed under the Rules framed under Section 3 of the Suits Valuation Act, because Section 8 of the Suits Valuation Act contained, that the value for the purposes of the jurisdiction in all suits except the suits contained in Section 7(v), (vi), (ix), (x) and clause (d) of the Court Fees Act shall be the same, thus, the value for the purposes of jurisdiction, in a pre-emption suits, shall not be the same and should not be fixed under Section 8 of the Suit Valuation Act. 1 would like to reproduce Section 8 of the Suits Valuation Act which is as under: - "8. Court-fee value and jurisdictional value to be the same in certain suits:- Where in suits other than those referred to in the Court Fees Act, 1870, Section 7, paragraphs (v), (vi) and (ix), and paragraph (x), clause (d), Court-fees are payable ad valorm under the Court Fees Act, 1870, the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction, shall be the same".
From the plain reading of the aforesaid provision, it is crystal clear that the value for the purposes of the jurisdiction of the suit, falling under Section 7(v, vi, ix and/ x) and clause (d) of the Court Fees Act, shall not be the same. The value for the purposes of the jurisdiction of the suit shall be determined under Section 3 of the Suits Valuation Act. Section 3 of the Suits Valuation Act contained that the Provincial Government may make rules for determining the value of the land for the purposes of the jurisdiction of the suits falling under Section 7(v, vi, ix, x and clause-(d) of the Court Fees Act. 1 would like to reproduce Section 3 of the Suits Valuation Act which reads as under:- "
3. Power for Provincial Government to make mles determining value of land for jurisdictional purposes:- (1) The Provincial Government, may, make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act 1870, Section 7, (v, vi, ix and x and Clause d)."
The Government of Punjab framed the Rules under Section 3 of the Suits Valuation Act. When the suits Valuation Act was adapted in Azad Jammu and Kashmir, then, it was adapted alongwith the Rules. This view finds support from P.L.D. 1981- AJK-55.
The words used in Section 7(v) of the Court Fees Act, and in the Rules framed under Section 3 of the Suits Valuation Act, are approximately the same, therefore, both the provisions shall be interpreted together and simultaneously. For having true perception, I would like to reproduce the rules which are as under: - "Rule 7. Part D, Manner of determining the value of land for the purposes of jurisdiction in certain classes of suits.
The following are the rules made by the Local Government, under the power conferred by Section 3 of the Suits Valuation Act, 1887,, and published as Punjab Government Notification No. 55, dated the 4th March, 1889, for determining the value of land for the purposes of jurisdiction in the suits mentioned in the Court Fees Act, Section 7, paragraphs (v) and (vi) and paragraph (x) clause (d).
RULES.
(1) In suits for the possession of land the value of the land for the purposes of jurisdiction, shall be held to be as follows:-
(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 the annual revenue payable for such part is recorded in the Collector's register, and such revenue is permanently settled,--sixty times the revenue assessed on the land;
(b) Where the land forms 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 revenue is settled, but not permanently,--thirty times the such revenue so payable.
Explanation to clause (b)~Where the land is a fractional share or a portion of part of an estate, and the land revenue payable for such part is recorded in the Collector's register, and such revenue is not permanently settled, the value for purposes of jurisdiction shall be held to be thirty time such portion of the revenue recorded in respect of that part as may be rateably payable in respect of the share or portion.
' Illustration'.- (l) in a suit for possession of a one third share of the entire holding of ten ghumaons forming part of an estate, and recorded as paying Rs.20 annual, revenue, the value of the land, for the purposes of jurisdiction, in one third of thirty times Rs.20 or Rs.600.
(2) In a suit for possession of one ghumaon out of the same holding the value of the land is one- tenth of thirty times Rs.20 or Rs.60.
(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.
(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and does not come under clauses (a), (b) or (c) of this rule, the market value of the land;
(c) Where the subject-matter is a garden--the market value of the garden".
The aforesaid rule 1(a) of the Suits Valuation Act and Section 7(v)(a) of the Court Fees Act contained, "where the land forms an entire estate or a definite share of estate paying annual revenue to the Government or forms part of such estate which has been separately assessed and recorded in the Collector's register".
8. Now, the first question arises that what does the estate mean, and the land in dispute was estate "Estate" means an area for which a separate record of rights is prepared and separate revenue is assessed. Mostly, separate Jamabandi of the entire village or mahal is prepared, therefore, the estate does not mean any khewat or Khatta number. One estate may consist of various Khewat, Khattas or villages. Moreover, the word "estate" has been defined in Section 4(9) of the West Pakistan Land Revenue Act. For comprehending it, I would like to reproduce the same which is as under:- "Sec. 4(9): "Estate" means any area-
(i) for which a separate record-of-rights has been made; or
(ii) which has been separately assessed to land revenue;
(iii) which the Board of Revenue, may, by general rule or special order, declare to be an estate".
According to the aforesaid definition, the "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 the purposes of assessm ent of revenue, or the Provincial Government has, by general rule or special order, declared a particular area as an estate. The term "estate" is a legal expression which forms the unit for revenue assessm ent. An estate or mahal is different from the village or mauza. Generally, however, an estate is a mahal which is assessed to the revenue. A unit of the land for the purposes of the assessm ent of the revenue is mahal. A separate engagement is demanded from the proprietors or Lambardar of every mahal in respect of revenue. Khewat and Khatta are recorded in the Revenue record, as separately assessed to the revenue, but maugre of this, Khewat or Khatta could not be termed as an "estate" because no separate engagement is executed in respect of Khewat or Khatta. The Settlement Officer used to distribute the property of a mahal into various khewat and khatta, therefore, one khewat and khatta could not be termed as an estate. This view finds support from A.I.R. 1933-Allahabad-4I4, the relevant portion of the judgment is as under:- "It is true that the khewat khatas in question are entered into revenue records as being separately assessed with revenue, that is, a certain amount of revenue is recorded as being payable in respect of each khewat khata cannot be held to be an "estate" within the meaning of this clause for the reason that no separate engagement has been executed in respect of each khewat khata. It appears that the settlement officer distributes the revenue assessed on each mahal over the several properties recorded separately in the khewat in accordance with the provisions of S. 67-A U.P. Land Revenue Act. This section was only inserted in the Act by an amending Act of the year 1929, but the practice of distributing the assessment of the mahal over its component parts (thoks, pattis or khewat khattas) had previously been inforce under the authority of rales contained in Board's Circular 1-1-,. I think it is clear that although each khewat khata is recorded as separately assessed with revenue, nevertheless, it cannot be held to be an "estate" within the meaning of the clause because no separate engagement has been entered into between Government and the proprietors in respect of the revenue assessed upon the khewat khata. It cannot be held that the khewat khata has been separately assessed with revenue, in the absence of such engagement because the proprietors of the mahal must have executed an engagement for the revenue assessed upon the mahal and the khewat khata is a part of the mahal. I think it is established therefore that a khewat khata is not an "estate" within the meaning of Section 7(v)".
In the instant case, some part of one khasra number was alienated which could not be termed, at all, as an "estate" as prescribed by rule 1(a) framed under the Suits Valuation Act.
Now, the next question arises, whether the land in dispute was a definite share of an estate paying annual revenue to the Government as provided in rule 1(a) of the Rules and Section 7(v)(a) of the Court Fees Act?
The word "definite share" means the fractional share of an estate. The fractional share can be a half, one third, or any other fractional share of the entire estate. It is pertinent to note that there is nothing on the record on the basis of which the quantity of the land could be assessed. When the quantity of the land could not be assessed, then, how the fractional share of the estate could be determined. It was the paramount duty of the learned Counsel for the plaintiff to prove that the land in dispute was the fractional share of the estate. Thus, the case of the plaintiff- respondent, was not covered under the definition of "definite share" paying annual revenue to the Government.
Where the land did not come within the ambit of the fractional share, then, the value for the purposes of the jurisdiction and the Court- fees was to be fixed on the market value of the land.
This view finds support from AIR 1924 Madras page 646 relevant page 647 which reads as under:- "The construction of S.7, cl.V.(a) to (d) has been the subject of consideration both in this Court and in the Allahabad High Court. In Godavarty Sundaramma v. Godavarty Mangamma (1) it was held that sub-clause (a) referred only to a definite fraction or share of an estate, and not to any piece of land which form a plot defined by metes and bounds included in an estate; in the other words, that the clause would apply only when the suit was for a half one third or any other fractional share of the entire estate. That view was followed in two unreported cases of this Court, S.A. Nos. 886 of 17 and 711 of 1915 and also in Chandan v. Bishan Singh (2). It seems to me that view is correct and I respectfully follow it. If that is correct, this suit should have been valued under sub-clause(d) and not under sub-clause (a) of S. 7 of the Court Fees Act. It is clearly excluded from the second part of sub-clause (a) because, it is not recorded in the Collector's register as separately assessed with annual revenue, the paimash register being not such a register as the Collector's register referred to. In these circumstances, the suit should have been valued, as held by the District Munsif, under sub-clause (d) of S.7 of the Court Fees Act".
9. The next question emerges whether the land in dispute was "part of such an estate and annual revenue payable for such part, is recorded in the Collector's register separately.
In the instant case, a portion of survey No. 2149 measuring on% kanal out of one kanal fourteen marlas, was alienated by the defendant-vendor to the appellant. Manzoor Hussain Office Quanoongo stated that no separate revenue for this survey number was assessed. When no separate revenue for the land in dispute was assessed, then, the value for the purposes of jurisdiction could not be determined under Rule 1(a) of the Suits Valuation Act and Section 7(v)(a) of the Court Fees Act. This view finds support from AIR 1930 Lahore page 182 relevant page 183, the relevant portion of which is as under:- "Even if the land were assessed to land revenue, I am of opinion that the suit being for a share in a specific plot land, which plot was not separately assessed to land revenue, Section 7(5)(b) does not govern the case but S.7(5)(d) applies and then, the Court-fee will have to be paid on the market value of the land".
It is crystal clear that neither Rule 1, (a) and (b) of the Suits Valuation Act nor Section 7(v)(a) and
(b) of the Court Fees Act, were applicable to the instant case. l6. In the instant case, the land in dispute was not assessed to the separate revenue. -There is nothing on the record on the basis of which it could be said that this land was paying such revenue, or it was exempted from the payment of the revenue and was charged with any fixed payment in lieu of such revenue. It is also pertinent to note that there is also nothing on the record on the basis of which it could be said that the net profits have arisen from the land during the year next before the filing of the suit. Thus, under Rule 1(c), the value for the purposes of the jurisdiction of die Court was the market-value of the land; and value for the purposes of the Court-fee was to be fixed under Section 7(v)(c) of the Court Fees Act, according to the value of the similar land in the neighbourhood. As stated above that in the instant case, the value for the purposes of the jurisdiction of the Court was the market value of the land.
11. Now, the next question arises that what was the market-value of the land in dispute?
In the instant case, in content No. 4 of the plaint, it has been specifically asserted by the plaintiff that the market value of the land was Rs.70,000/-, so, the value for the purposes of the jurisdiction according to the admitted facts, was Rs.70,000/-. The learned Addl. Sub-Judge was only competent to hear the suits to the extent of the value of Rs.25,000/-/ Thus, the learned Additional Sub-Judge had no jurisdiction to entertain the present suit. When the learned Additional Sub- Judge had no jurisdiction to hear the suit, then, the decree passed by him, was without any jurisdiction and the learned District Judge wrongly concurred with him.
12. The upshot of the-above discussion is that this appeal is accepted and the judgments and decrees passed by the Addl. Sub-Judge and District Judge, Mirpur dated 4.5.1995 and 21.10.1995, are hereby set aside.