1. ' The applicants have impugned the order, dated 3-11-1999, passed by the learned Additional District Judge, Sanghar, in C.A. No,8 of 1999, whereby the application under section 3 of Limitation Act moved by the applicant was dismissed.
2. ' The brief facts giving rise to the present revision application are that the respondents Nos.1 to 9 plaintiffs filed First Class Suit No,180 of 1992, in the Court of learned Senior Civil Judge, Sanghar, stating therein that Serial Nos.91, 92, 97 and 98 admeasuring 17-36 acres in Deh Moorhadi, Taluka Khipro, belonged to their ancestor. It is stated that they leased out the land verbally to the applicants/defendants Nos.4 to 7. The applicants paid lease money for some years and afterwards stopped paying it. The respondents demanded possession of suit land but the defendants/applicants refused to 'hand over the same. The plaintiffs/respondents filed suit for Declaration, Possession and Permanent Injunction.
3. ' The defendants/applicants were served and filed written statement. They asserted that the ancestors of parties had exchanged their lands situated in same Deh in the year 1955. They denied the oral lease and took legal pleas that the suit was undervalued and the proper court-fee was not paid. The official defendants had initially appeared in the trial Court but later on they remained absent and were declared ex parte. The learned trial Court framed the issues out of pleadings, including the under valuation of suit and non-payment of proper court-fee. The suit was, thereafter, transferred to the Learned Senior Civil Judge, Khipro. The parties adduced their evidence and ultimately the suit was dismissed vide judgment, dated 29-9-1997. Whereby, it was observed that the suit was under-valued and court-fee was not paid. It was held that the plaintiffs were required to pay the court-fee on the valuation of Rs,25,000 per acre of the suit land within 7 days.
4. The learned trial Court passed the judgment of the above effect, and further held that decree would be prepared after the required court-fee is paid.
5. ' The plaintiffs/respondents did not pay court-fee and filed an appeal on 9-10-1997 in the Court of learned District Judge, Sanghar, being Civil Appeal No,36 of 1997 on the basis of aforesaid judgment without filing decree. The defendants/ appellants were served and they appeared in the aforesaid Civil Appeal and challenged the maintainability of appeal as the same was filed without any decree. The maintainability of appeal was also challenged on nonpayment of court-fee.
6. ' On 17-2-1999, the learned District Judge, after hearing parties passed the judgment, the concluding para. Of it is as under: "Hence, it is hereby directed that the memo. Of this appeal may be consigned to record, and R & Ps of the suit may be returned to the learned trial Court with a direction to frame a decree, in the light of the facts, as to whether or not the order regarding the payment of ad valorem court-fee is complied with by the plaintiffs/appellants shall be at liberty to file fresh memo. Of appeal in the Court of law, if they so desire. For the purpose of present memo. Of appeal, the parties are left to bear their own costs."
7. ' The learned trial Court on remand of case prepared decree on 24-2-1999. The plaintiffs/respondents, thereafter, filed a fresh appeal on 10-3-1999, on the basis of aforesaid decree, bearing Civil Appeal No,8 of 1999. The said Civil Appeal was transferred to Additional District Judge, Sanghar, wherein the defendants/applicants moved an application for dismissal of same on the ground that the same was barred by time and that the plaintiffs/respondents had failed to pay court-fee stamp in the trial Court as well as in the Appellate Court. On the said application learned Additional District Judge, Sanghar passed the order which is impugned under this revision application.
8. ' It is contended by the learned counsel for the applicant that the plaintiffs/respondents were required to pay the ad valorem court-fee on the valuation of suit land as the respondents had prayed for the judgment and decree in their plaint as under:---
(a) This Honourable Court may be pleased to declare that the plaintiffs are legal and lawful owners of the suit land i,e,, Serial Nos.91, 92, 97 and 98 admeasuring 17-36 acres situated in Deh Moorhadi near Registan Taluka Khipro, on the basis of its grant from the Barrage Authorities which stands inherited by them as per record of rights being the legal heirs of original grantees namely Obhayo and Hassan both sons of Parchedino and that the claim of defendants Nos.4 to 7 of being owner thereof is mala fide and void, ab initio.
(b) This Honourable Court may further be pleased to dispossess the defendants Nos.4 to 7 from the suit land and to put the plaintiffs into vacant possession thereof, being its lawful owners.
(c) This Honourable Court may be pleased to grant permanent injunction against the defendants restraining them from getting the suit land mutated in their favour mala fidely and fradulently and bringing the same under any encumbrance if any way, in any manner whatsoever.
(d) That the costs of the suit be borne by the defendants.
(e) Any other relief which this Honourable Court deems fit and proper may be awarded to the plaintiff.
9. ' It is stated that relief sought in plaint is with regard to possession, declaration of ownership and permanent injunction, as such, they were required under section 7 of Court Fees Act, to pay court- fee on the valuation of subject-matter viz. 17-36 acres. It is next contended that the judgment in Suit No,180 of 1992 was passed on 29-9-1997, which was assailant in Civil Appeal No,36 of 1997. The appeal was filed on 9-10-1997 and the subsequent appeal under which the same judgment, dated 29-9-1997 was assailed on 10-3-1999. This Appeal bearing No,8 of 1999 in the Court of District Judge Sanghar, was barred by time. The learned counsel in support of his aforesaid pleas has referred to the cases of (i) Habib Sultan v. Allanditta (1981 CLC 1715), (ii) Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others (1997 SCM R 919), (iii) Muhammad Riaz and another v. Allahyar (NLR. 1983 UC 404), (iv) Mst. Farida Malik v, Dr. Khalida Malik (1998 SCM R 816), (v) Mst. Fatima Bibi and others v. Noor and another (1994 SCM R 62) and (vi) Fateh Muhammad v. A. Ghani (NLR 1981 Civil 512).
10. ' Mr. Jhamat Jethanand, learned counsel for respondents had argued that the court-fee is not required under section 7 of Court Fees Act as the suit is valued for Rs,25,000 and that the relationship of the parties was that of landlord and tenant. He pleaded that the suit land was leased out under verbal agreement and, therefore, clause 11(CC) of section 7 of Court Fees Act would apply, whereih no court-fee is required. It is stated by learned counsel that the appeal was in time as the decree was prepared on 24-2-1999 and the appeal was preferred on 10-3-1999. The learned counsel argued that Civil Appeal was filed in time and that no court-fee is required to be paid either on plaint or the appeal.
11. The record reveals that the Civil Appeal No,8 of 1999 was preferred on 10-3-1999 against the decree which is passed on 24-2-1999. The appeal can only be filed under section 96, C.P.C., and Order XLI, Rule 1, C.P.C., against the decree and not judgment.
12. ' In view of these facts the civil appeal so filed cannot be said to be barred by time. The finding by Appellate Court on above-stated point cannot be held to be perverse or illegal. The case-law referred to by learned counsel has no relevance to the facts and legal position to the case in hand.
13. ' The other point raised by the learned counsel regarding non-payment of court-fee, has force in it.
14. The suit is filed for possession, declaration and permanent injunction in respect of agricultural land admeasuring about 17-36 acres, and valuation shown in the plaint is only Rs,25.000, which appears to be imaginary and illusory. The arguments that the land in question was on lease with the defendants/applicants and, therefore, clause 11(CC) of section 7 of Court Fees Act, would be applicable is not tenable. The prayer clause of plaint nowhere shows that declaration sought was in regard to any lease relationship between the parties. The prayer is on the contrary to the effect that the respondents be declared as legal and lawful owners of the suit land. The argument to that effect are not sustainable and the respondents are liable under the law to pay ad valorem court- fee on the plaint as well as on the appeal pending in the Appellate Court.
15. ' The impugned order indicates that the learned Additional District Judge, Sanghar, has observed in his order that according to section 7(5) of Court Fees Act, the court-fee on agricultural land is payable subject to the payment of revenue to the Government. The learned Court has held that in view of these observations the respondents have to pay court-fee 10 times or 5 times of the land revenue which was paid in the year 1992, when suit was filed. The finding to that effect is misconceived. This provision of section 7 was amended in the year 1974, and the amended provision reads as under:--- "(v) After clause (iv) the following shall be added as clause (iv-A):-- (iv-A) Notwithstanding anything contained in clause (iv), in suits for declaratory decree with consequential relief as to right in, or title to, immovable property based on alleged sale, gift, exchange or mortgage thereof according to the value of the property;"
16. In view of the aforesaid legal position of the case, this revision application is partly allowed to the extent that the appellants/respondents are liable to pay ad valorem court-fee on plaint as well as appeal. The Appellate -Court shall decide and determine the court-fee on the valuation of subject- matter to be fixed on the basis of prevailing market value of the land in the vicinity. The Appellate Court shall decide this appeal expeditiously. The court-fee is to be paid within 15 days of its fixation and in case the court-fee is not paid in the specified period, the appeal would stand dismissed. R.A.
17. 237 of 1999 is disposed of alongwith listed applications.