' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court, dated 19-1-2001, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts of the case are that the appellant filed a suit for possession on the basis of right of prior purchase regarding land measuring 10 Kanals and 3-1/2 Marlas, comprising various survey numbers, including the share of vendor in 'Sharnlat' and the house constructed over the suit land.
The land was sold by Fazal Hussain, respondent No,6, to Muhammad Afsar, respondent No,1, father of respondents Nos.3 to '5 and husband of respondent No,2, i,e,, Walayat Khan in equal shares. The case of the plaintiff-appellant in the High Court was that land was actually sold for Rs,1,80,000 but the consideration amount was entered in the sale-deed showing that same was sold for Rs,4,00,000. The defendants-vendees filed written statement and challenged the jurisdiction of the trial Court on the ground that it had no jurisdiction in view of the jurisdictional value of the suit.
However, the trial Court decreed the suit on the payment of consideration amounting to Rs,4,00,000 plus the other expenses amounting to Rs,14,518. Both, the appellant an the defendants vendees.
Filed cross-appeals before the District Judge. The District Judge dismissed the appeal filed by the appellant, herein for the reduction of the pre-emption money while accepted the appeal filed by Muhammad Afsar and Walayat Khan, vendees, through a consolidated judgment holding that the trial Court had no jurisdiction. The appeal filed by the appellant to the High Court was also dismissed on the ground that the District Judge had no jurisdiction to hear the appeal of the appellant in view of the amount which he sought to be reduced and failure to bring the legal representatives on record within the period of limitation. The High Court expressed the view that as the appear fi.Eu by the vendees-respondents before the District Judge was directed against the right of preemption of the appellant, the same was competent to the District Judge whereas cross- appeal tiled by the appellant, herein, regarding reduction or pre-emption money was competent to the High Court and not to the District Judge.
3. Ch. Muhammad Azam Khan, Advocate, the learned counsel for the appellant, has argued that Walayat Khan, one of the defendants-vendees, died and his legal representatives were brought on record without objection of the opposite side on 18-3-1995. However, the counsel for the appellant inadvertently moved an application for setting aside the abatement of the appeal to the extent of share of said vendee respondent despite the fact that such abatement had not taken place. Thus, he has argued that the appeal could not be dismissed by the High Court on the basis of failure to bring on record the legal representatives of the said respondent. The learned counsel for the appellant has also argued that the High Court has committed an error in holding that the trial Court and the District Judge had no jurisdiction to hear the suit and the appeal filed by the appellant. It has been further contended by him that the High Court on the one hand has held that appeal filed by the respondents, herein, against the pre-emption decree passed in favour of the plaintiff-appellant was competent before the District Judge but on the other opined that the appeal filed by the appellant before the District Judge for the reduction of pre-emption money was competent to the High Court and not before the District Judge. Thus, he has contended that contradictory findings, of the High Court are not sustainable that appeal against same judgment and decree would lie to the different Courts at the same time. He has argued that the learned Judge in the High Court has also erred in properly appreciating the case reported as Bans Gopal Singh v. Sheo Bardan Singh AIR 1944 Oudh 276 while holding that the appeal filed by the appellant, herein, was not competent to the District Judge; the aforesaid authority is distinguishable and has no relevancy to the proposition involved in the present case. He has further contended that as separate market value of the house sold was not mentioned in the sale-deed, the plaintiff- appellant was at liberty to fix the jurisdictional value of the suit according to his own notion.
4. In reply, Raja Muhammad Siddique Khan, Advocate, the learned counsel for the respondents, has argued that in the instant case the plaintiff-appellant had fixed the jurisdictional value and the value for the court-fees as Rs,100 but he has not referred to law under which such value can be fixed arbitrarily. The learned counsel has argued that the jurisdictional value of the suit in the present case would be market value of the suit land plus the house etc. Determined on the basis of the rules framed under section 3 of the Suits Valuation Act read with the provisions contained in section 7 of the Court Fees Act. The learned counsel has argued that the trial Court has recorded evidence of the parties and came to the conclusion that the market value of the house was Rs,32,367 as is evident from the estimate prepared and proved by Muhammad Abbas, Overseer, the witness for the respondents. Evidently, at the relevant time the Sub-Judge had the jurisdiction to entertain a civil suit of which the jurisdictional value was Rs,25,000. Thus, he had no jurisdiction to try the present suit. However, the learned Sub-Judge assumed the jurisdiction on fake grounds that as no separate value of the house was mentioned in the sale-deed, he had the jurisdiction to try the suit. He has further contended that the learned District Judge and the High Court have rightly held that the Sub-Judge had no jurisdiction to hear the suit in view of its jurisdictional value.
5. We have given due consideration to the arguments advanced at Bar. The moot point in the case is as to whether the learned Sub-Judge was justified in holding that as separate value of house was not mentioned in the sale-deed, he was competent to proceed with trial of the- suit.
Irrespective of the fact whether any separate value of the house was not recorded in the sale- deed, it was imperative on the plaintiff to fix the jurisdictional value according to the relevant law of the land. In the instant case, the court-fees and jurisdictions value, were to be fixed in view of the provisions of the Court Fees Act, the Suits Valuation Act and the rules framed under section 3 of the Suits Valuation Act. The jurisdictional value of the house was to be fixed according to the value of the same. According to the evidence led before the trial Court, it is amply dui that the market value of the house was more than Rs,25,000, if the market value of the land determined on the basis of land revenue is added to it, the jurisdictional value of the suit would be further increased, Thus, we are of the opinion that in view of the jurisdictional value ascertainable on the basis of evidence recorded by the trial Court, the suit was not triable by the Sub-Judge.
6. We agree with the learned counsel for the respondents that the High Court was not correct in holding that the appeal filed by the appellant for the reduction of the amount was not comment before the District Judge but one filed by the respondents challenging the pre-emption decree passed in favour of the appellant was within his jurisdictional competence. In view of the provisions of subsection (2)(a) of section 36 of the Courts and Laws Codes, 1949, the forum of appeal is to be determined on the jurisdictional value given in the plaint and not the subject-matter of the appeal section 36(2)(a) is reproduced as under:--- "36.(1)
(2) An appeal from a decree or order of a subordinate Judge shall lie:---
(a) to the District Judge where the value of the original suit in which the decree of order was made, does not exceed Rs,5,000; (b)
(Underlining is ours)
It is evident that the value fixed in the original suit is to be considered while determining the forum of appeal. Thus, in the present case the appeal filed by the appellant, herein, lay to the District Judge, because according to the appellant the jurisdictional value of the suit was Rs,100 although that was controverted by the respondents. Even otherwise, both the appellant and the respondents filed appeals before the District Judge, they are debarred from challenging his competence to hear the same in view of the provisions contained in section 11 of the Suits Valuation Act which stipulates that if objection regarding over-valuation or undervaluation of a suit or appeal is not raised in the trial Court before or at the time of framing the issues and in the appellate Court in the memorandum of appeal, the same cannot be raised afterwards. Thus, we are of the opinion that in view of the respective contentions of the parties, both the appeals were competent before the District Judge. However, as the suit filed was not within the jurisdictional competence of the Sub- Judge, the decree of pre-emption passed in favour of the appellant has rightly been set aside by the District Judge and the appeal against the same to the High Court was also rightly dismissed.
Therefore, the appeal filed by the appellant before the District Judge for the reduction of the pre- emption amount is inconsequential in the instant case.
7. It was also argued that in fact the legal representatives of Walayat Khan, vendee, were brought on the record without objections within the period of limitation but through inadvertence an application was given subsequently that abatement of the suit to his extent may be set aside. In fact the application for setting aside the abatement was given on mistaken view of the fact that application for bringing his legal representatives had not already, been given. Thus, the appeal filed by the appellant could not be held to have been abated because nobody can be penalised for the mistake of the Court or its officials.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.