' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been directed against the judgment and decree passed by the High Court on 23-2-1999, whereby accepting the appeal filed by Muhammad Khan, respondent No,1 herein, the findings of the Courts below were set aside and the pre-emption suit filed by the appellant, herein, was dismissed.
2. The precise facts, giving rise to the present appeal, are that Ghulam Rasool, plaintiff-appellant, filed a suit of pre-emption in the Court of Additional Sub-Judge Mirpur on June 25, 1991, against a sale-deed of land measuring 1 Kanal, comprising Survey No,2149, situate in village Sahang, Tehsil and District Mirpur, which was sold for an ostensible consideration of Rs,1,30,000. The Trial Court after taking necessary proceedings in the suit decreed the suit filed by the plaintiff-appellant. On appeal to the District Judge by the defendant-respondent the same was dismissed. However, on appeal filed by respondent No,1 the judgments and decrees of the Courts below were set aside by the High Court observing that the Trial Court had no jurisdiction to try the suit in view of the consideration amount entered in the sale-deed. According to the learned Judge in the High Court the jurisdictional value of the suit in the instant case was to be fixed in view of the marked value of the suit land under section 7(vi)(d) of the Court Fees Act read with sections 3 and 8 of the Suits Valuation Act and the rules framed thereunder. It has been observed by the High Court that as the suit land was not a definite share assessed to land revenue, the jurisdictional value ought to have been fixed in view of the market value of the suit land and not in view of the land revenue.
3. In support of appeal it was vehemently contended by Mr. Muhammad Yunus Arvi, the learned counsel for the appellant, that the High Court has reversed the judgments and decrees of the Courts below on erroneous view of law. He has argued that the suit land was definite share which was assessed to land revenue, and thus, there was no question of fixing the jurisdictional value in view of the market value of the suit land. He has referred to an unreported case of this Court titled Muhammad lqbal v. Farzand Begum and others (Civil Appeal No,81 of 1998 decided on 4-12-1998), wherein the view contrary to the High Court's view was taken. The learned counsel for the appellant referred to the statements of Muhammad Akram Patwari and Manzoor Hussain, Office Qanoongo, wherein they deposed that on the copy of Jamabandi Exh.P.A. There was no entry of the land being assessed to land revenue for the reason that entire record of village Sahang is unattested. It was stated by Patwari witness that the suit land is a Mera Doem. The witness further stated that the land revenue on Mera Doem is assessed as three annas and three pies per kanal of village Sahang which is so entered in first volume of Jamabandi of 1958-59 on its index (Ser-band). Similarly it was stated by Manzoor Hussain, Office Qanoongo, that Exh. P.A. Jamabandi of 1958-59 has not been prepared so far. Khasra No,2149 is not assessed to land revenue, however, in actual register of Jamabandi in Pert Sarkar the land revenue is assessed which pertains to the whole Khata and which is fixed as five rupees eight annas annually. The witness further stated that the land revenue of the land Mera Doem is fixed as three annas and three pies per Kanal. Thus, according to the learned counsel for the appellant, the land revenue was assessed on the suit land in 'view of the statements made by the Patwari and office Qanoongo. In rebuttal of this record no material has been produced by the respondent, although the burden of relevant issue was on the defendant- respondent. The learned counsel for the appellant contended that in the written statement while replying the para pertaining to consideration amount it was unequivocally stated by defendant- respondent that the suit land was sold by vendor for consideration of Rs,1,30,000 and the same amount was paid by the vendee. If the plaintiff-pre-emptor, the appellant herein, was ready to pay Rs,1,30,000 the consideration amount of the sale-deed, his suit for pre-emption may be decreed. In view of the aforesaid admission made by the defendant-respondent he was estopped to challenge the judgment and decree passed by the learned Trial Court which decreed the suit of plaintiff-pre-emptor on payment of Rs,1,30,000 plus the expenses incurred on the sale-deed. The learned counsel contended that the High Court erroneously under a misconception of relevant law observed that the suit of plaintiff-appellant was not triable by the Sub-Judge in view of its pecuniary jurisdiction being the market value of the land in question. The learned counsel vehemently urged that rightly or wrongly a decree was passed in favour of plaintiff-appellant by the Trial Court; against that judgment and decree if the contention of respondent is accepted as correct then the remedy for the defendant-respondent was to file appeal directly in the High Court and not before the District Judge. In that case the appeal lodged before the High Court was clearly barred by limitation. This point of vital importance escaped the notice of the High Court, submitted the learned counsel.
4. On the other hand Raja Muhammad Siddique Khan, the learned counsel for respondent No,1, by controverting the arguments raised by the learned counsel for appellant, contended that the suit for preemption filed in the Court of Sub-Judge was not maintainable as the pecuniary jurisdiction of the suit was to be fixed in accordance with the market value of the land and as such the suit was tribal by the District Judge and not by the Sub-Judge. The learned counsel contended that the High Court committed no illegality in dismissing the suit of plaintiff-appellant for want of jurisdiction by the Trial Court as the value of the suit was not determined by the plaintiff in accordance with the market value of the suit land and, thus, the whole exercise of jurisdiction by the Trial Court was a nullity in the eye of law. The learned counsel for respondent also pressed into service the submission that against the judgment and decree passed by the Trial Court he did not lodge the appeal before the High Court for the reason that the value of the suit for the purpose of jurisdiction and Court-fee was fixed by the plaintiff and in accordance with that his appeal was competent before the District Judge and not directly before the High Court. The learned counsel strenuously argued that if he had filed appeal against the judgment and decree of the Trial Court directly in the High Court, his appeal would have been returned to him for lodging the same in the appropriate Court. So, apprehending the aforesaid eventuality he did not lodge the appeal in the High Court taking into consideration the value of the suit determined by the plaintiff-appellant. The learned counsel for respondent further submitted that it has been correctly held by the High Court that the land was not separately assessed to land revenue and no revenue of the same was paid to the Government, therefore, the valuation of the suit for the purpose of jurisdiction and Court-fee shall be fixed according to the market value of the land, which according to the plaintiff-appellant, was shown as Rs,70,000, and according to the defendant-respondent as Rs, 1,30,000. Thus, in any case the suit of the plaintiff was tribal by the District Judge and not by the Sub-Judge.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the High Court has held that under section 7(v)(d) of the Court Fees Act the jurisdiction of the trial Judge was barred as the suit land was not a definite share of the estate and was not separately assessed to land revenue and not paid to the Government as such the jurisdictional value should have been determined according to the market value of the land.
Section 7(v) clause (d) of the Court Fees Act 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 view, is not attracted in the present case for the simple reason that the land in question is assessed to land revenue in accordance with the statements of Patwari and office Qanoongo. Muhammad Akram, the Patwari witness, deposed in the Court that the entire record of village Sahang was unattested. It was further stated by Patwari witness that the suit land in Mera Doem. The witness, as stated in earlier part of this judgment, however, deposed that the land revenue on Mera Doem is assessed as three annas and three pies per kanal of village Sahang which is so entered in Ser-band. Similarly, it was stated by Manzoor Hussain, Office Qanoongo, that Khasra No,2149 is not assessed to land revenue, however, in actual register of Jamabandi in Pert Sarkar the land revenue is assessed which pertains to the whole Khata and is fixed as rupees five, eight annas annually. In both the situations, in our view, if the value of the suit for the purpose of jurisdiction is fixed on the basis of land revenue on Mera Doem land, the case is triable by the Sub- Judge. In the alternative even if the value of the suit is fixed on the basis of whole Khata, wherein the land in question is entered, the suit remains to be triable by the Sub-Judge.
6. In a case titled Muhammad Iqbal v. Farzand Begum and others 1999 CLC 1108, it was held as follows:--- "In our view the provisions applicable will be section 7, clause (vi) which may usefully be reproduced below:--
(vi) to enforce a right of pre-emption---In suits to enforce a right of preemption---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 gardens. -- -In suits for the possession of land, houses and gardens---according to the value of the subject- matter and such due shall be deemed to be---whether 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 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 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."
' 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 the Court Fees Act and valuation of the suit is determined under section 8 of the Suits Valuation Act.
' Another observation also appears in the case titled Ghulam Hussain Shah v. Hidayaullah Khan PLD 1981 SC (AJ&K) 55), which is reproduced from page 59 and is to 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.'
7. It has been strenuously argued by Raja Muhammad Siddique, the learned counsel for respondent No,1, that even if the land revenue is assessed on the suit land, the same is not paid as the land revenue has been exempted by the Government, as such it cannot be said by any stretch of imagination that on the suit land the land revenue was paid. In our view the contention raised by the learned counsel for the respondent merits no consideration for the simple reason that actual payment of land revenue is not mandatory portion of the procedure laid down for assessing suit valuation. It is the land revenue which is payable to the Government and not its actual payment which is key to the procedure for valuation. This is clear from the fact that in the subsequent provision the word "payable" and not "being paid" has been used.
8. Another reason for not accepting the contention of the learned counsel for respondent is that the defendant-respondent cannot blow both hot and cold in the one and same breath. On the one hand the case of defendant-respondent is that the plaintiff's suit was tribal by the District Judge in view of its pecuniary jurisdiction in accordance with the market value of the suit land and on the other hand when the defendant-respondent's learned counsel was confronted with the situation that in that case his appeal would have been competent before the High Court and not before the District Judge. The learned counsel, facing the aforesaid predicament, replied that he lodged the appeal against the judgment and decree of the Sub- Judge before the Court of District Judge for the reason that the valuation of the suit was fixed by the plaintiff. Had he directly gone to the High Court by way of appeal against the judgment and decree of the Trial Court, his appeal would have been returned by the High Court to him for presenting the same before a proper Court. In our estimation the aforesaid stand of the learned counsel for respondent is contradictory in nature. If according to him the law stands settled that the pecuniary jurisdiction of the suit in question was such that the suit was tribal by the District Judge, then the only course open for defendant- respondent was to lodge a direct appeal in the High Court. In that situation we are aware that the defendant's appeal was time-barred as he has been seeking his remedy before the District Judge.
This point of vital importance was also not attended to by the High Court.
9. We have already mentioned somewhere that in the written statement filed by defendant- respondent before the Trial Court, it was unequivocally stated by the defendant that if the plaintiff wanted to get a decree for pre-emption in his favour, he may pay the total consideration amount of Rs,1,30,000. Without entering into the question as to whether after payment of Rs,1,30,000 by the pre-emptor to the defendant-respondent, he was estopped from lodging the appeal or not, in fact this averment on the part of defendant-respondent impliedly meant that he accepted prior right of the plaintiff-appellant. It had been concurrently held by the Trial Court as well as the First Appellate Court that plaintiff preemptor has a preferential right over the land as compared to vendee which has not been rebutted by the defendant-respondent. The High Court has also not set aside the finding of Trial Court as well as the District Judge on that score.
10. In the light of what has been stated above, by accepting the appeal, we set aside the impugned judgment and decree passed by the High Court and uphold the judgments and decrees passed by the Trial Court and the First Appellate Court. In the circumstances of the case, we pass no order as to costs so far as this Court is concerned.