' This regular second appeal arises out of the following facts.
2. The land measuring 36 Kanals as detailed in the plaint, situate at Mauza Ahmadpur Tappa, Tehsil Ahmadpur East was owned by Allah Ditta son of Elahi Bakhsh who alienated the same vide Mutation No,545, dated 28-4-1966 in favour of Sher Muhammad son of Imam Bakhsh. The ostensible sale consideration was Rs,14,000. A suit for pre-emption was filed by Atta Muhammad Khan and Ghulam Hussain claiming superior right of pre-emption on the basis of being Sharik Khata. They claimed the actual sale price to be only Rs,2,700. The defendants contended the suit and denied the superior right of the preemptors. It was also contended that the sale consideration of Rs,14,000 was actually fixed and paid by the vendees.
3. From the pleadings of the parties, the following issues were frames:-- Issues
(1) Has the plaintiff right of pre-emption superior to that of the vendee-defendant? OPP
(2) If so, has he waived by words and conduct? OPD
(3) Is the suit barred by time? OPD
(4) What is the effect of the plaintiff having not made the deficiency in court-fees within one year of the date of attestation of mutation?
(5) Is the suit bad for partial pre-emption?
(6) Is the suit not properly valued for court-fees and jurisdiction? If so, what is the proper valuation?
(7) Was the sum of Rs,14,000 fixed in good faith or actually paid?
(8) If not what is the market value of the land?
(9) Whether the report of local commission is liable to be set aside?
(10) Whether the exchange and not sale has taken place? If so, what is its effect?
(11) Relief.
4. Upon Issue No,1, the learned Civil Judge relied upon Jamabandj pertaining to the year 1964-65 which shows that the preemptors were owners in the Khata from which the suit-land was sold. This issue was decided in favour of the pre-emptors. Issues Nos.3 and 4 are relevant in the context of the present R.S.A. As it is only upon these issues that the concurrent findings of the learned Civil Judge as well as that of the learned First Appellate Court have been assailed.
5. The case of the appellant before the learned trial Court was that the plaintiffs/pre-emptors had made up the deficiency of court-fee , much after the expiry of date of limitation and that the plaint was liable to be rejected on account of being not properly stamped within the period of limitation.
It was contended that the mutation of sale was attested on 28-4-1966 whereas the suit was filed on 18-4-1967. It was contended that the plaintiffs/pre-emptors moved an application before the learned Civil Judge to make good the deficiency of the court-fee which application was granted by the trial Court and the plaintiffs were given time up to 15-6-1967 to do the needful. The deficient court-fee was paid on 12-6-1967 i,e, within the time granted by the Civil Court. The learned Civil Judge relying upon the case Muhammad Siddique v. Muhammad Ibrahim PLD 1981 Lah. 97 held that as the plaintiffs/pre-emptors had made good the deficiency in court-fee within the time allowed by the Court, they cannot be burdened with any attributable contumacy. On appeal, the judgment and decree, dated 13-6-1983 was upheld only with the modification that the sale consideration of Rs,14,000 was found to be correct instead of the sale consideration of Rs,6,327 as determined by the trial Court. Upon Issues Nos.3 and 4, the First Appellate Court held that since the insufficiently stamped plaint was entertained, the pre-emptors were entitled to be granted at least one opportunity to make up the deficiency of the court-fee and if the same was allowed and made good within time, the same would take effect and be operative from the date of the original suit.
Reliance was placed on the case of Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227 for the proposition that the trial Court was competent to grant time to make good the deficiency of the court-fee and that the plaint could be rejected only if the plaintiff had failed to pay the requisite court-fee within the time so granted. In this regular second appeal, the only ground which has been agitated is that the suit was liable to be dismissed on the ground of limitation as (a) the suit was filed on a plaint which was insufficiently stamped, (b) deficiency in court-fee was made after the expiry of period of limitation, (c) that the permission to make up deficiency was obtained on factually incorrect grounds inasmuch as the plaintiffs were in possession of the documents on the basis of which, the court-fee could be calculated and that the permission was obtained by practising fraud with the Court.
6. Although in regular second appeal, another ground was taken that the transaction was that of an exchange and not of sale yet it was not urged at the time of arguments.
7. Arguments of the learned counsel for the parties have been heard and record perused. The contention of the learned counsel for the appellant that making up of deficiency in court-fee after the expiry of period of limitation was fatal to the suit on the ground of limitation is erroneous. The learned trial Court was fully competent to grant time to the plaintiffs for supplying court-fee and upon compliance with such orders of the Court, it shall be deemed as if the court-fee was paid in the first instance and the question of bar of limitation does not arise. Reference is made to Mst.
Parveen's case (supra). The other contention raised by the learned counsel for the appellant that the permission was obtained by practising fraud upon the Court is also baseless. The learned trial Court being fully competent to grant time, no illegality or irregularity can be inferred from the grant of such extension. Although no other point was urged, it is nevertheless noted that the appellant through R.S.A. Has challenged the concurrent findings of fact made by the trial Court and the First Appellate Court and no ground of interference has been made out. This regular second appeal has no merit and is hereby dismissed The parties to bear their own costs.
Second .