JUDGMENT MIAN SAQIB NISAR, J. - Through a consolidated judgment, the suit for pre-emption filed by the appellants was partly decreed, while a partial decree was granted to the rival pre-emptors.
Veri dees/defendants preferred two appeals against the aforesaid judgment and decrees, whereas the appellant also challenged the to the rival pre-emptor by the learned Trial Court. The learned Appellate Court, vide a consolidated judgment dated 22.11.1987, dismissed the appeal of the appellants; one appeal of the vendees against the in favour of the rival preemptors was also dismissed, but accepted the third appeal and resultantly the suit of the rival pre-emptor for whole of the suit property was allowed.
2. Briefly stated the facts of the case are that one Shujah- ud-Din (vendor), the owner of the land measuring 1073 kanals and 10 marlas vide an agreement dated 13.1.1973, agreed to sell the aforesaid land in favour of Muhammad Din, etc. (vendees). According to the agreement to sell, Ex.D-1, the sale also included the tube-well installed upon the land, as also a room meant for that purpose. Subsequently, vendees filed a suit for declaration, against Shujah-ud-Din, claiming to be the owners of the property agreed to be sold through aforesaid agreement to sell; on account of consent given by Shujah-ud-Din, this suit was allowed vide judgment and decree dated 15.2.1973. It may be pertinent to state here that though in the- agreement to sell, it is not mentioned, if the sale also includes any vacant land attached to 1073 kanals, 10 marlas or regarding the share of Shujah- ud-Din in the Sham lat hed, but in the plaint, it was mentioned by the vendees that agreement to sell pertains to some attached to the aforesaid land and also-the share of vendor in the Sham lat hed. Anyhow, a consent decree for declaration was granted to the vendees in terms of the property specified in the plaint. The appellants and Ghulam Muhammad, etc. (rival preemptors) filed two separates suits for pre-emption, on account of being owners of the estate. These suits were consolidated by the learned Trial Court and the following issues, which are relevant of the disposal of the present appeal, were framed:-
1. Whether the suits have been correctly valued for the purpose of Court-fee and jurisdiction, if not what is the correct valuation for both the said purposes?
6. Whether the connected suit is bad for partial preemption?
10. Whether the pre-emptors have got superior right of preemption than the defendants/vendees?
11. Whether a sum of Rs. 90,000/- was fixed in good faith or actually paid as the sale price of the suit land?
The trial was conducted and the learned Civil Judge, vide judgment and decree dated 24.6.1982, held both the suits to be properly valued for the purposes of Court-fee and jurisdiction; on issue No. 6, it was concluded that though the consent decree contemplates the sale of the suit land measuring 1073 kanals and 10 marlas, alongwith the^ sale of share of the vendor in the Sham lat hed and ( but from the evidence brought on the record, it is not proved that the vendor had any transferable right in the Sham lat hed or even the consent decree does not specify the number or details of the Sham lat hed. Therefore, the suit of the appellants was held not to be bad for partial pre-emption. On issues Nos. 10 and 11, the findings of the Trial Court are that "the plaintiffs and rival pre-emptors have proved themselves to be holders of estate in the village. The defendants/vendees have not proved any such status. Therefore, this issue is decided in favour of the plaintiffs and the defendants Nos. 1,10 and 12. The total land belonging to the plaintiffs as per Ex.P-6, and Ex.P-4, the copies of the jamabandi comes to be about 602 Kanals whereas the total estate of the rival pre-emptors Muhammad Ashraf, etc. Comes to be 51 Kanals. The ratio between the plaintiffs and the rival pre-emptors is 12.1, so they are entitled to the disputed land in this ratio, respectively". While granting relief, a decree in terms of Section 17(c) of the Punjab Pre-emption Act, 1913 to the extent of 1/12 shares, was passed in favour of the appellants, and for 11/12 shares, the suit filed by rival pre-emptors was allowed, it may be pertinent to state here that the rival pre-emptors did not prefer any appeal/cross appeal/objections, against the aforesaid judgment and decree, it is only the vendees, who filed two appeals and one was preferred by the appellants.
3. The learned Court in appeal, while considering issue No. 1, has come to the conclusion that valuation fixed by both the preemptors for the purpose of Court- fee was not correct, therefore, by determining the sale price of the suit property as given in agreement to sell and the decree, as the market price of the suit property, directed both the rival pre-emptors to make up the deficiency. The appellants were ordered to affix an amount of Rs.
3,825/- on the plaint by or before 6.12.1986 and it was held "if any of the plaintiff/pre-emptors fail to abide by this direction, their suit shall be deemed to have been dismissed on this ground". On issue No. TO and 11, the findings of the Trial Court, were upheld, holding that both the pre-emptors having right to pre-empt the suit property. But on issue No. 6, learned Court in appeal came to the conclusion that "case of the vendees/defendants is that the plaintiffs Muhammad Ashraf, etc. Have not pre-empted whole of the suit property. The decree passed in favour of the vendee shows that they had purchased land alongwith tube-well, room of the tube-well, share in the vacant land and share irr the Sham lat alongwith share in the well and place around the well with managers , etc. The plaint in suit of Muhammad Ashraf shows that this material parts of the suit property were left out. The belated efforts were made by the plaintiffs Muhammad Ashraf, etc. To include this property in the plaint by away of amendment. Their application for amendment of the plaintiff is available on page No. 111 of file of suit titled Muhammad Ashraf, etc. Vs. Muhammad Din, etc. The application was however, not allowed and the defect in the plaint remained as it was. This property is not separable from the other land. The learned counsel for the plaintiffs Muhammad Ashraf, etc. However, made statement before me to the effect that his clients were still ready to pay whole of the price determined by this Court. This cannot be allowed because the property is indivisible and the stranger cannot be allowed to keep this property because it will be against the spirit of pre- emption law. In this matter, therefore, I can only hold that suit of the plaintiffs Muhammad Ashraf, etc. Was bad for partial pre-emption because they had left out material part of the property sold.
Issue No. 6 is answered accordingly". On issue No. 15, pertains to the relief, it is concluded that "on the basis of finding on issue No. 6, I hold that suit of the plaintiffs Muhammad Ashraf, etc. Was to be dismissed as one for partial pre-emption, it was incorrectly decreed to the extent of part of the property. I, therefore, accept the Appeal No. 173 of 1987, titled Muhammad Ashraf, etc. Vs. Ghulam Ahmed, etc. Leaving the parties to bear their on. Costs and consequently dismiss the suit of Muhammad Ashraf,. Etc. Leaving the parties to bear their on. Costs.
Suit of Muhammad Ashraf, etc. Having been dismissed the plaintiffs Ghulam Ahmed, etc1-are entitled to decree the whole of the suit land. I, therefore, decree suit of Ghulam Ahmed with regard to whole of the property pre-empted subject to payment of Rs. 1,35,000/-. The pre-emptors Ghulam Ahmed, etc. Shall deposit the pre-emption money of Rs. 1,35,000/- less the amount already deposited on or before 6.12.1987. Failing which, their suit shall be deemed to have been dismissed.
Coming to the effect of finding on issue No. 1, with regard to affixation on memorandum of appeal, I find that appeal of Muhammad Ashraf, etc. Is deficiently stamped by Rs. 2,250/-. This amount of Court-fee shall be paid on or before 6.12.1987, failing which the appeal filed by Muhammad Ashraf, shall be deemed to have been dismissed. On this account also and .The amount of Court-fee shall be recovered from Muhammad Ashraf, etc. In accordance with law. Likewise^ two appeals filed by Muhammad Din, etc. Have a deficiency of Rs. 2,250/- in Court- fees on each appeal. This .Deficiency shall make good on or before 6.12.1987, failing which appeals filed by Muhammad Din, etc. Shall be dismissed. As far as appeal No. 171 titled Muhammad Din Ghulam Ahmed, etc., is concerned, it has no merits and the same is dismissed leaving the parties to bear their on. Costs", it may be pertinent to state here, that vendees have not come forward to challenge the aforesaid judgment and decree and the present appeal has been filed by Muhammad Ashraf, etc.
4. It was initially argued by learned counsel for the appellants that at the time of sale a part of the suit land was "Banjar Kadeem" while a part was under cultivation, therefore, to treat the whole of the land as banjar kadeem and to assess and determine its market value, on the basis of sale price and requiring the appellants to make good the deficiency of Court-fee on the basis thereof, by the Appellate Court is erroneous and illegal. But during the course of argument, learned counsel without prejudice to his submission, conceded to make up the deficiency in the payment of the Court-fee as determined by the learned Appellate Court on the plaint, as well as on the memo, of first appeal. However, an objection has been raised by the learned counsel -for the respondents/rival pre-emptors that because the appellants have failed to make up the deficiency as directed by the learned first Appellate Court by or. Before 6.12.1986, therefore, the suit stands dismissed and resultantly the present appeal is incompetent and cannot proceed.
5. I have heard learned counsel for the parties and have also perused the record. According to the judgment, though it has been held by learned Appellate Court that if the appellants fail to make up the deficiency in the Court-fee on the plaint by the given date, their suit shall stand dismissed, but according to the decree sheet drawn in the present case, there is no such direction and the suit of the appellant has been dismissed only on issue No. 6. Moreover, according to the judgment in the appeals, filed by the vendees, a direction has also been issued to them, to make up the deficiency on the memo, of appeal, challenging the decree in favour of the appellants by 6.12.1986, failing which their appeal was liable to be dismissed, it has not been proved on the record if Muhammad Din, etc: has complied the direction to make up the deficiency. But again there is no formal expression of this direction in the decree sheet pertaining to the appeal of the vendees against the appellants. Therefore, if such deficiency has not been made good, on the same analogy, the appeal of vendees, stands dismissed and that being so there was no challenge to the decree in favour of the appellants and resultantly their suit could not be dismissed on account of deficiency, it may be reiterated that rival pre-emptors had not challenged the decree of the Trial Court in the suit, passed in favour of the appellants, therefore, they have no right or locus standi to seek the dismissal of the present appeal on account of fact that appellant has not made good the deficiency as directed by learned Appellate Court, it is settled law that, it is essential for a decree that there should be a formal expression of the adjudication, it is the decree, which has to be executed and given effect and not the judgment. Considering all these facts, particularly, induced by the reasons that in the decree sheets prepared by the learned Appellate Court in the appeal of the appellants or even the one filed by vendees, as there is no formal expression of making up the deficiency in the payment of Court- fee, failure whereupon the suit of the appellants stands dismissed.
Therefore, I find that the objection raised by learned counsel for respondents cannot sustain. Even otherwise, it is settled law that the payment of Court-fee is a matter between the State and the litigant and the rival party cannot use it as a tool to non suit a party on the above score. Keeping in view the above reasons and while exercising the appellate jurisdiction of this Court under Order 41, Rule 33, CPC, I deem it appropriate that in the interest of justice, the time given to the appellants in making up the deficiency in the payment of Court-fee as determined by learned Appellate Court be extended by one month from today and thus the appellant is directed to make up the deficiency on or before 10.8.2001, on the plaint, as also on the first memo, of appeal, In case, such deficiency is not provided, this appeal would be deemed to have been dismissed.
6. As regards issue No'. 6,it has been noticed that in the agreement to sell between vendor and vendees there is no mention of any sale of vacant land or share in the Sham lat. Only reference has been made to a tube-well and room of the tube-well. However, in the body of plaint, in the suit filed by vendees, it was averred that the sale also pertains qua vacant land and the share of the vendor in the Sham lat hed. However, on account of the consent of vendor this suit has been decreed.^ it was never determined in that suit, if vendor had any vacant land appurtenant to the land sold i.e..
1073 kanals and 10 marlas or any share in the Sham lat hed. The appellants in their suit have specified the whole of 1073 Kanals and 10 Marlas, therefore, if any omission has been made, by not stating the vacant land or shares in the Sham lat hed such omission would not be hit by the principle of* partial preemption. Moreover, the tube-well and the room for that purpose, was installed/erected on a part of land measuring 1073 kanals, 10 marlas and was attached and appurtenant to the land in question, therefore, it was not required from the pre-emptor to specifically mention such appurtenance in the body of the plaint. Taking into consideration the contents of the plaint as a whole, it is vivid that the plaintiffs/appellants were pre-empting the sale of 1073 Kanals, and 10 Marlas by making specific mention of khasra number and did not omit to pre-empt any part thereof, which was sold to the vendees. This undoubtedly included the appurtenance attached to the land. As regard, Sham lat hed, it may be stated that as per the settled law that every owner of the land situated in a village is not the share-holder in the Sham lat hed. It is only 'Aala Malik' who has such share; moreover, it is also to be proved on the record, if there exists a Sham lat hed in the village or not. In the instant case, not only the fact that the respondents have hot been able to establish that vendor was an "Aala Malik" having any right or interest in the Sham lat hed, which he could transfer to vendees; it is not established that there was a Sham lat hed in the village, it seems that in the plaint filed by vendees, as a matter of routine they stated being the transferees of the right in the Sham lat hed. Because vendor, did not contest this matter, therefore, the decree was passed in the light of description of the property given in the plaint, it may be reiterated that respondents have even failed to prove on the record the very existence of the Sham lat hed in the village and to produce copies of jamabandi giving effect to the consent decree from which it can be ascertain/established if the vendor had any right or interest in the Sham lat hed or the ( , which stood transferred on account of the decree in favour of the vendee. Furthermore, there is no evidence on the record about the description of the vacant land sold alongwith 1073 Kanals and 10 Marlas nor any such mutation was ever effect in the revenue record, same is the position of Sham lat hed. Thus, in the light of above, it cannot be held that suit of the appellants was bad for partial pre-emption, aS they omitted to preempt any part of the land sold. Learned Appellate Court has glaringly omitted to take into account the above factum and has only considered the decree while holding against the appellants. The judgment relied upon by the learned counsel 'for the respondent reported as Ghulam Muhammad, etc. Vs. Khushi Muhammad, etc. (PLD 1973 SC 444) to argue that even if the preemptor is prepared to pay the whole price of the land, but has omitted to sue for whole of the suit land sold, the suit still would be bad for partial pre-emption, suffice it to say that the aforesaid judgment is distinguishable on its on. Facts, In the instant case, the crucial question is whether there was any Sham lat hed in.
Existence in the village or ( isr) attached to the land in question; whether Shujah-ud-Din was Aala Malik and had any transferable right or interest therein; what is the extent and nature thereof and whether there was any change brought in the ownership in the Sham lat hed or ( after the consent decree. These aspects are conspicuously missing and without being proved on the record, it cannot be held that the suit of the appellants was bad for partial pre-emption. The learned Appellate Court has grossly failed to apply its mind to the above.
7. Therefore, I reverse the findings of the learned Appellate Court on issue No. 6, and by upholding the finding of the learned Trial Court on the said issue, allow the suit of the appellants to the extent of 1/12 share in ,the suit property on the payment of amount, as has been determined by the Trial Court in its judgment and decree and direct the appellants to deposit such amount with the Trial Court within a period of one month, from today, failing which the plaint of the appellants shall be.
Deemed to have been rejected under Order VII, Rule 11, CPC. It may be pertinent to state here that respondent's side has conceded that in case findings of the learned Appellate Court on issue No. 6, are .Set aside, the appellants are entitled to decree to the extent of share allocated by the Trial Court, it may be further added that the decree of the Trial Court in favour of the appellants was challenged only by the vendees, the rival pre-emptors neither filed any appeal/cross appeal/objection nor it is established from the record that the decree was verbally attacked during the course of hearing, I am surprised to note, as to how the learned Appellate Court while accepting the appeal of the vendees was empowered to grant a decree of the whole of the suit land in favour of the rival pre-emptor.
In the light of above, by allowing this appeal, the impugned judgment and decree of the Appellate Court is set aside and the suit of the appellants is allowed to the extent of 1712 share with the direction to appellant to make up the deficiency in the payment of Court-fee and deposit sale consideration with the Trial Court, as mentioned above, it may be stated that in case, this direction is not complied with, the plaint of the appellants, shall be deemed to have been rejected. No orders as to costs.