' The respondents purchased suit land measuring 637 Kanals, 6 Marlas from Raza Muhammad, Qutab Sher sons of Haji Ata Muhammad. The sale was effected by means of Court decree, dated 11-11-1980 issued on the basis of an award. On 3-11-1981 the petitioners claiming to be real brothers of the vendors filed a suit for possession of the suit land by pre-emption. It was alleged in the plaint that land had in fact been sold for Rs,1,40,000. The respondents Nos.1, 2 and 5 filed their written statements on 30-4-1982 and took the plea that out of the said land respondents Nos.1 and 2 had purchased 477 Kanals, 6 Marlas of land for Rs,2,30,000 while respondent No,5 had purchased 80 Kanals land for Rs,40,000 and so is the case with respondents Nos.3 and 4. Their plea was that at the time of sale they were occupying suit land as tenant. Respondents Nos.3 and 4 in their written statement stated that they had purchased 80 Kanalas of land for Rs,20,000 while respondent No,5 had purchased 80 Kanals land for Rs,20,000. These respondents prayed that the suit may be decreed. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree, dated 5-11-1984 subject to deposit of Rs,1,40,000. The respondents Nos.1, 2 and 5 filed a first appeal which was heard by the learned Additional District Judge, Khushab, who allowed the same and while maintaining the decree passed by the learned trial Court against respondents Nos.3 and 4 set aside the decree passed against respondents Nos.1,2 and 5. This was done vide judgment and decree, dated 20-3-1985.
2. Messrs. Sh. Naveed Shaheryar and Syed Muhammad Kaleem Ahmad Khurshid, learned counsel for the petitioners argue that the value of the suit for the purposes of court-fee as well as jurisdiction was affixed on the plaint as Rs,2,75,430 and as such the learned Additional District Judge was not possessed of pecuniary jurisdiction to 'hear and decide the appeal filed by respondents Nos.1,2 and 5. Rely upon the case of the Abdul Majid and others v. Muhammad Walayat Khan (1987 SCMR 1139). Further contend that the sale in favour of the respondents was not divisible and as such notwithstanding the fact that respondents Nos.1,2 and 5 were occupying suit land as tenant, they sank with respondents Nos.3 and 4 who had no right equal or superior that of the petitioners.
3. Malik Noor Muhammad Awan, learned counsel for the respondents relied on section 11 of the Suits Valuation Act, 1887, to contend that objections having not been raised in the manner prescribed before the learned first appellate Court, the same cannot be raised now. On merits supports impugned judgment and decree of the learned Additional District Judge witli reference to the pleadings of the parties as also background of sale wherein not only shares were specified but also price that had been paid by each set of the vendees.
4. I have gone through the record of the learned Courts below with the assistance of learned counsel for the parties. It is true that in the amended plaint filed on 6-11-1982 it was stated in para. 7 of the plaint that the value of the suit for the purposes of court-fee and jurisdiction is affixed 15 times of the net annual profit accruing from the suit land during the year before the institution of the suit which comes to Rs,2,75,430 and that court-fee of the value of Rs,15,000 has been affixed on the plaint. It is also true that for determination of the forum of appeal as held in the case of Ilahi Bakhsh and others v. Mst. Bilqees Begum (PLD 1985 SC 393) and said case of Abdul Majeed and others 1987 SCMR 1139 relied upon by the learned counsel for the petitioners, valuation fixed in the plaint is also relevant. However, section 11 of the Suits Valuation Act, 1887 places embargo in A specific terms upon entertainment of objection to the pecuniary jurisdiction of the learned Courts below in the circumstances stated in the section unless and until the learned appellate Court is satisfied for the reasons to be recorded by it in writing, that the suit or appeal was overvalued or undervalued and overvalue or undervalue thereof has prejudicially affected the disposal of the suit or appeal on it merits.
5. Learned counsel for the petitioners with reference to the said case of Abdul Majeed has tried to argue that this was a case where the first appellate Court had no jurisdiction to deal with the appeal and as such section 11 does not apply. To my mind the argument is without any force.
Before proceeding further I may reproduce the following excerpts from the said judgment in the case of Abdul Majeed:--- "It is-well established that section 11 of the Suits Valuation Act, 1887 has effect of curing want of jurisdiction caused by erroneous or improper valuation and treats over valuation, or under valuation as mere irregularity contemplated under section 99 of Civil Procedure Code."
' Thereafter, their lordships proceeded to hold that in the case before their lordships there was no allegation of under valuation or over valuation. In fact a reading of the judgment would show that none of the parties alleged that the value affixed in the plaint was not correct.
6. Now present case is of possession by pre-emption. So far as the court-fee is concerned the same has to be assessed on the basis of net annual profit accruing from suit land for the year preceding filing of the suit. These profits were assessed at Rs,18,362 and 15 times thereof comes to Rs,2,75,430. What has to be seen is as to whether under the law the value was to be the same or otherwise. The matter was set at rest in the case of Ilahi Bakhsh and others (PLD 1985 SC 393), wherein the dictum laid down in the case of Jan Muhammad and others v. Dr. Abdul Ghafoor etc. (PLD 1966 SC 461) was followed and the conclusion arrived at by this Court in the case of Sadar Din v. Elahi Bakhsh and another (PLD 1976 Lahore 1) "that for ascertaining the forum of appeals in land suits under section 18 of the Civil Courts Ordinance the value of the original suit as determined under the Rules framed under section 3 of the Suits Valuation Act for purposes of jurisdiction will be the determining factor and not the market value as sale price of the subject-matter of the suit was affirmed. Now under Rule 1 of the Rules framed under the Suits Valuation Act 30 times revenue payable is to be the value for the purposes of jurisdiction in a suit to enforce a right of pre-emption (rule 2 refers).
7. The respondents Nos.1, 2 and 5 along with their grounds of appeal appended a statement that the land revenue payable in respect of suit land is Rs,220.21 and 30 times thereof comes to Rs,6,606.30. This amount of land revenue payable was neither questioned before the learned first appellate Court and nor before this Court. I have no hesitation at all in accepting the said figure to be correct. This being the position the value for the purposes of jurisdiction was Rs, 6,606.30 and the learned Additional District Judge was competent to hear and decide the appeal. This is certainly a case of over valuation and squarely falls within the saving clause i,e, section 11 of the Suits Valuation Act, 1887.
8. Coming to the merits of the case, having examined pleadings and evidence on record I find myself in complete agreement with the learned counsel for the respondents Nos.1,2 and 5 that by all means sale was divisible. The .Award, on the basis whereof decree, dated 11-11-1980 followed is available on record as Exh.D4. It clearly states that 477 Kanals, 6 Marlas land has been sold to the respondents Nos.1 and 2 for Rs, 2,20,000, 80 Kanals has been sold to respondents Nos.3 and for Rs,40,000 while 80 Kanals has been sold to respondent No,5 for Rs,40,000. In the very plaint the petitioners have proceeded to state as follows in para-2. {{URDU TEXT}} ' To similar effect are pleadings of the two sets of the defendants in the case. Haji Ahniad respondent No,1 appeared as D.W.2 and stated the manner in which the land was purchased, the shares and price paid separately. I do not find anything in his cross-examination challenging the said statement.
9. Learned counsel for the petitioners lay much stress on a portion of cross-examination of Sadiq Hussain D.W.2 to the following effect:- {{URDU TEXT}} The said portion taken in isolation may give an impression as gathered by the learned counsel for the petitioners but the statement read as whole does support the contention of respondents Nos.1, 2 and 5. Needless to state that criteria laid down for judging the divisibility or otherwise of a sale laid down in the case of Abdullah and 3 others v. Abdul Karim etc. (PLD 1968 SC 140) and later upheld in the case of Mir Ahmad and others v. Attaullah alias Ana Muhammad and another (PLD 1991 SC 210) and Muhammad Riaz and others v. Fateh Muhammad and others (PLD 1991 SC 210) is that not only share in land be specified but the price had also be separately specified and paid.
The said criteria stands squarely met with in the present case. This civil revision is accordingly dismissed leaving the parties to bear their own costs.