' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioners seek leave to appeal against the judgment dated 1st March, 1999 passed by learned High Court of Balochistan in Civil Revision No,80 of 1998 whereby while dismissing the petition the orders/decrees of the trial and appellate Courts respectively dated 20-12-1997 and 27-2-1998 were maintained.
2. Precisely stating the facts giving rise to instant petition are that on 10-10-1996 the petitioners filed a suit with the prayer that they may be declared owners of the unsettled (unmeasured) lands boundaries whereof were mentioned in the plaint on the averments that these lands are situated adjacent to their settled lands entering into Khasra No,531/533/535/536/ 527/528/530, Mouza Kapok Yadgar and respondents have no entitlement over the disputed unmeasured land. It is pertinent to mention here that the subject-matter of the suit was valued for the jurisdiction of the Court at Rs,20,000. However, the court-fee of Rs,40 was paid for the relief of declaration and injunction (Rs, 30 + 10 = 40) respectively.
3. The respondents filed written statement repudiating the claim of the petitioners and challenged the pecuniary jurisdiction of the Court on averments that the price of the land runs into thousands of rupees on which proper court-fee has also not been paid.
4. Learned trial Court i.e,, Qazi Dalbandin framed issues arising out of pleadings of the parties including the one i.e,, "Whether the court-fee is properly paid". All the issues both on facts and law were tried together and vide judgment dated 20th December, 1997 dismissed the suit concluding amongst others that the suit has not been properly valued and requisite Court fee has also not been paid.
5. The petitioners preferred appeal before Majlis-e-Shoora Nushki which was also dismissed on 27th February, 1998 and Revision Petition No,80 of 1998 was instituted before the High Court of Balochistan which also met the same fate. As such instant petition has been preferred.
6. Mr. Basharatullah learned Senior Advocate Supreme Court candidly conceded that as there are concurrent findings of fact against the petitioners by the High Court and both the subordinate Courts i.e, appellate and trial Court on merits of the case, therefore, he would first of all argue the legal point namely that as the trial Court vide its judgment dated 20th December, 1997 has concluded that the suit has not been properly valued and the requisite court-fee has also not been paid, therefore, in such situation the Court has lost pecuniary jurisdiction, as under section 4 of the Balochistan Civil Disputes (Shariat Application) Regulation, 1979 (hereinafter referred to as the "Regulation") the Court of Qazi is competent to hear the cases up to the value of the subject- matter of Rs,50,000 and beyond this amount the suits are triable by Majlis-e-Shoora on original side. Thus according to him once the Court has held that the value of the suit is more than Rs,50,000 therefore, it should have stayed its hands and have transferred the case to Majlis-e- Shoora for adjudication.
7. We afraid the contention put forth is devoid of force because petitioners themselves opted to invoke the jurisdiction of learned Qazi Dalbandin by declaring the value of the subject-matter of the suit to be Rs,20,000. However, in view of the objection in the written statement the trial Court framed issue "As to whether the court-fee is properly paid" and on receiving the evidence produced by the respondents came to the conclusion that the value of the disputed land is very high and plaintiffs (petitioners) have not affixed the court-fee, therefore, the issue was decided against them. First of all it is to be seen that for want of evidence on behalf of the petitioners the value of the property was not indicated in terms of amount to conclude that it has exceeded Rs,50,000 nor it was shown that how much court-fee has not been paid. Thus, in such circumstances presumption would be that the value of the suit had not exceeded from Rs,50,000 debarring the jurisdiction of the Court of Qazi Dalbandin. The petitioners in the memo. Of appeal filed before Majlis-e-Shoora did not accept the finding of the trial Court rather insisted that the subject-matter of the suit has been valued properly. However, for the first time it was argued before the learned High Court of Balochistan that as the value of the land is worth Rs,3,40,000 therefore, Court of Qazi had no jurisdiction to adjudicate upon the matter. The contention so raised was turned down by learned Judge in Chambers of the High Court in the following terms: ' "I have not been persuaded to agree with Mr. K.N. Kohli, Advocate that learned trial Court had absolutely no jurisdiction to decide the case for the reasons that there is nothing on record to show that land is worth Rs,5,00,000 or above. In view of the petitioners/plaintiffs the maximum price of the land is Rs,20,000 while the witnesses deposed that it could be in-between Rs,10,000 to Rs,15,000.
In this regard according to respondents the value could be Rs,60,000. It may not be out of place to mention here that since the land is unsettled therefore, it would be difficult to determine its appropriate value. Be as it may, besides the abovementioned, hypertechnical objection which was never raised during the previous round of ligation, the petitioners failed to substantiate their claim by producing cogent and concrete evidence. It may not be out of place to mention here that attorney for the petitioners had pointed out that approximate value of the land which according to him could be Rs,60,000 but no court-fee is whatsoever has been affixed and on the contrary its worth has been shown as Rs,20,000 in the plaint itself."
7-A. In view of the above controversy question for consideration crops up as to whether in the civil cases where the trial Court after recording evidence has concluded that the value of the subject- matter of the suit is more than the pecuniary jurisdiction of the Court then it will loose its jurisdiction and shall refer the case in the mid of the stream to the Court having pecuniary jurisdiction.
' As per section 6, C.P.C. The Court shall have no juridiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction whereas under section 15 of C.P.C. Every suit shall be situated in the Court of lowest grade competent to try it. It may also be important to note that if the value of the subject-matter does not exceed Rs,50,000 then as per section 4 of the Regulation the Court of Qazi being first original Court is competent to try the case. In our opinion the petitioners have rightly instituted the suit in the said Court in consonance with the provisions of section 15, C.P.C., therefore, merely for the reason that if the Court has opined that the value of the subject-matter is very high and court-fee has not been paid then Court may have not stayed its hands and transfer the case to Majlis-e-Shoora having jurisdiction to try the suit. Even otherwise if during pendency of the suit the value of the subject- matter has been found more than pecuniary jurisdiction of the Court trying the suit it will not be deprived from its pecuniary jurisdiction under section 6 of the C.P.C. To try the suit in view of the judgments reported in Bidyadhar Bachar and others v. Manindra Nath Das and others (AIR 1925 Calcutta 1076), Mt. Urehan Kuer v. Mt. Kabutri (AIR 1934 Patna 204), A .K.A .C.T.V. Chidambaram Chethiar v. A . L . P. R . S . Muthia Chettiar (AIR 1937 Rangoon 320) and Mahmood Akhtar and another v. Ch. Muhammad Hussain Naqshbandi, Additional District Judge, Rawalpindi and another (1986 CLC 1451). Thus we are of the opinion that had there been clear findings by the Court of Qazi that the value of the subject-matter is more than Rs,50,000 even then it was competent to adjudicate upon the matter.
8. It is further added that this argument is not at all available to the petitioners themselves because they have lost the case on merits before trial and Appellate Courts as well as learned High Court, therefore, they cannot be allowed to turn around and argue that the Court has no pecuniary jurisdiction to try the suit. Thus for this reason as well no interference is called for.
8-A Learned counsel for the petitioners lastly contended that the trial Court had recorded findings on Issue No,5 in favour of respondents and against petitioners and indirectly a decree has been granted in their favour. It may be noted that onus to prove the issue was on the respondents which they have successfully discharged by leading evidence therefore the argument being without force is turned down.
' In view of what has been stated hereinabove petition is dismissed and leave to appeal is refused.