This appeal is directed against the judgment and decree passed by the Additional District Judge, Kahutta (Haveli), Camp Dhirkote on 28-8-1999 whereby an appeal filed against the order of the Sub-Judge, Dhirkote, was dismissed. The facts giving rise to the present appeal, are that the plaintiff-appellant tiled a suit for possession by pre-emption in respect of the suit land, in the Court of Sub-Judge, Dhirkote. The suit was resisted by the opposite side by tiling written statement. Another suit challenging the gift- deed, was also filed, Both the suits ware consolidated and issues arising out of the pleadings of the parties, were framed. The trial Court heard arguments on the issue framed on jurisdiction in the pre-emption suit and held that the Court had no jurisdiction as such returned the plaint to the plaintiff-appellant for presentation before the Court of competent jurisdiction while other suit filed on behalf of appellant to challenge the gift-deed made in favour of vendees, was rejected holding therein that the plaintiff-appellant had no cause of action. Appeal filed with the District Judge, was dismissed. Hence this appeal. A preliminary objection raised by Sardar Zahoor Ahmed Khan, Advocate representing the respondents is that both the suits were consolidated and a common order was passed. The appellant had to file two appeals under law but he filed one appeal challenging the order passed in pre-emption suit and the other suit tiled to challenge the gift-deed, before the District Judge, Dhirkote which was dismissed. The present appeal was also filed in respect of the said suits which was not maintainable. Sh. Abdul Aziz, counsel for the appellant while meeting the aforesaid objection, stated that he would pursue his appeal to the extent of only pre-emption suit and not the other suit filed to challenge the gift-deed on which the counsel for the respondents felt satisfied to the extent of this point, therefore, the aforesaid point is not required to be resolved any more. Sh. Abdul Aziz, counsel for the appellant argued that the trial Court illegally returned the plaint to the appellant as, according to him, the suit was tribal by the Sub-Judge, keeping in view its jurisdictional value. The trial Court illegally determined the jurisdictional value under the Court Fees Act i,e, section 7 (v) (c). It was elaborated that the aforesaid provisions of law were not attracted for the purpose of determination of jurisdictional value. For the reason that the Court wrongly and illegally held that the land revenue was not assessed as the same was not recovered for being exempted by the Government, the jurisdictional value could be determined keeping in view the produce of the suit-land. It was argued that the land revenue was assessed and for determination of the jurisdictional value, the same was to be determined under the Suits Valuation Act and not under the Court Fees Act. The learned counsel further argued that it is incorrect to suggest that the land revenue was not recovered and the same was exempted by the Government. It was clarified that the land revenue was assessed. However, to the extent of 8 Kanals, its recovery was exempted which was also subsequently withdrawn. The counsel forcefully argued that in any case, the jurisdiction of such matter vested with the Sub-Judge, keeping in view the pecuniary jurisdiction in the pre-emption suit. It was also pointed out that the land revenue for the suit land, according to the 'Jamabandi' for the year 1971, Exh.PB, was assessed as Rs,5. Sardar Zahoor Ahmed Khan, counsel for the respondents vehemently opposed the contentions raised by the counsel for the appellant, by arguing that the respondents with the permission of this Court, amended the written statement by raising the aforesaid point whereby an objection was raised that in view of section 7(v)(c) of the Court Fees Act, the jurisdictional value had to be determined keeping in view the produce of the suit-land. It was explained that the recovery of the land revenue was exempted in Azad Jammu and Kashmir from the year 1970 and the same was not paid at the time of filing of the suit, therefore, according to the produce of the suit land which was determined keeping in view the report and statement of the Commission, as Rs,3,500 and thus the jurisdictional value was determined as Rs,35,000 as such the trial Court and the First Appellate Court correctly arrived to a conclusion that the Sub-Judge had no jurisdiction. The counsel, however, cited no law except section 7 of the Court Fees Act. I have heard the learned counsel for the parties and also gone through the record with care. The plaintiff-appellant tiled a suit for possession by pre-emption in respect of the suit-land, in the Court of Sub-Judge, Dhirkote. He determined the jurisdictional value as Rs,300 on the basis of Rs,5 assessed as land revenue for the aforesaid land. The defendant-respondents raised an objection that the recovery of land revenue, was exempted in the Azad Jammu and Kashmir as such the jurisdictional value of the suit-land would be determined in accordance with the provisions of section 7 (v) (c) of the Court Fees Act according to which produce of the suit-land shall be considered. The trial Court framed issue on the subject and after hearing arguments on the same, held that the Court had no jurisdiction as the produce of the suit-land was determined as Rs,3,500 and after calculating for the purpose of jurisdictional value, the same was determined as Rs,35,000, therefore, returned the plaint for presentation before the competent Court. It may be mentioned that sub-paras. (v) and (vi) of section 7 of the Court Fees Act are applicable to suits for enforcing a right of pre-emption. ' The aforesaid provisions of the Court Fees Act, are reproduced: "(v) For possession of lands, houses and gardens.--In suits for the possession of land, houses and gardens--according the value of the subject-matter: and such value shall be deemed to be-- where the subject-matter is land, and
(a) Where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government,or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue,and such revenue is permanently settled--ten times the revenue so payable:
(b) Where the land forms as an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently--five times the revenue so payable;
(c) Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such' revenue, and net profits have arisen for the land during the year next before the date of presenting the plaint-fifteen times, such net profits: but where no such net profits have arisen therefrom--the amount at which the Court shall estimate the land with reference to the value of similar land in the neighborhood.
(d) Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as abovementioned--the market--value of the land: Explanation.--The word 'Estate' as used in this paragraph means any land subject to the payment of revenue, for which the proprietor or former or raiyat shall have executed a separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue.
(vi) To enforce a right of pre-emption.--In suits to enforce a right of preemption--according to the value (computed in accordance with paragraph (v) of the section) of the land, house or garden in respect of which the right is claimed." It means that court-fee in pre-emption suits, is to be fixed in accordance with the provisions of paras. (v) and (vi) of section 7 of the Court Fees Act. However, the determination of the Jurisdictional value, is an issue to be resolved. The jurisdictional value has to be determined keeping in view the provisions of the Suits Valuation Act. The suits covered by section 7, paras.(v) and (vi) (pre-emption suits) and (ix) and (x), clause
(d) are excluded from the operation of section 8 of the Suits Valuation Act, therefore, for determining the pecuniary jurisdiction in a pre-emption suit, the proper section applicable will be section 3 of the Suits Valuation Act and the Rules made thereunder. The relevant sections 8 and 3 of the Suits Valuation Act and the Rules made thereunder are reproduced:-- "8. Court-fee value and jurisdictional value to be. The same in certain suits.--Wherein suits other than these referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), and paragraph (x), clause (d) court-fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same."
"3. Power for Provincial Government to make rule determining value of land for jurisdictional purposes.--(1) The Provincial Government may make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act, 1870, section 7, paragraphs (v) and (vi) and paragraph (x) clause (d).
(2) The rules may determine the value of any class of land, or any interest in land in the whole or any part of a local areas and may prescribe different values for different places within the same local area.
(1) Suits for possession of land.--In suits for the possession of land, the value of the land, for purposes of jurisdiction, shall be held to be as follows:--
(a) Where the land forms an entire estate, or a definite share of any estate paying annual revenue to Government or forms part of such an estate, and the annual revenue payable for such part is recorded in the Collector's register, and such revenue is permanently settled,--sixty times the revenue assessed on the land.
(b) Where the land forms an entire estate, or a definite share Of an estate paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid, and revenue is settled, but not permanently,--thirty times such revenue so payable.
Explanation to clause (b).--Where the land is a fractional share or a portion of part of an estate, and the land revenue payable for such part is recorded in the Collector's register, and such revenue is not permanently settled, the value, for purposes of jurisdiction, shall be held to be thirty times such portion of the revenue recorded in respect of that part as may be rateably payable in respect of the share or portion.
Illustrations.--(1) In a suit for possession of a one-third share of the entire holding of ten ghumaons forming part of an estate, and recorded as paying Rs,20 annual revenue, the value of the land, for the purposes of jurisdiction, is one-third of thirty times Rs,20, or Rs,600.
(2) In a suit for possession of one ghumaon out of the same holding the value of the land is one- tenth of thirty times Rs,20, or Rs,60.
(c) Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint.--fifteen times such net, profits. But where no such net profits have arisen therefrom the market-value.
(d) Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and does not come under clauses (a), (b) or (c) of this Rule.--the market value of the land.
(e) Where the subject-matter is a garden.--the market value of the garden.
2. Suits for pre-emption.--In suits to enforce a right of pre-emption in land , the value of the land, for the purposes of jurisdiction, shall be calculated by the preceding rules.
3. Suits falling in different classes.--When the land or interest in suit falls partly under one and partly under another, of the classes enumerated in rule 1 the value of the land in each class shall be separately calculated."
Therefore, keeping in view the aforesaid Rules framed under section 3 of the Suits Valuation Act, the jurisdictional value of the suit shall be determined. The reliance in this regard is placed on Ghulam Hussain Shah's case (PLD 1981 SC (AJ&K) 55) wherein it was held as under:-- "...Our view is that Court Fees Act, being purely a fiscal enactment, is not referable for deciding this point unless the case is shown to fall within the purview of section 8 of the Suits Valuation Act. A cursory reading of section 8, will show that the suits covered by section 7, paras. (v), (vi) (pre- emption suits) and (ix) and (x), clause (d) are explicitly excluded from the operation of section 8.
Therefore, for determining the pecuniary jurisdiction in a preemption suit, the proper section applicable will be section 3 of the Suits Valuation Act and the Rules made thereunder by the Provincial Government."
It may also be mentioned that in case the land revenue is assessed but for some reason, it is not recovered for being exempted, the jurisdictional value shall be determined in accordance with the assessm ent of the land revenue. The aforesaid proposition came under discussion before the Supreme Court of Azad Jammu and Kashmir in Ghulam Rasool's case (2000 YLR) 2104) wherein the following observations were made:-- "Court Fees Act, 1870 (VII of 1870)--S.7(v)(d)--Azad Jammu and Kashmir Right of Prior Purchase Act, (1993 B.K.), S.14--Determining pecuniary jurisdiction in pre-emption suit, where land in question, was assessed to land revenue--Statements of Patwari and Officer Qanungo in Court suggested that land in question, was assessed to land revenue and that the same was MeraDoem land, revenue of which was assessed as three annas and three pies per Kanal in relevant land--Value of suit for purpose of jurisdiction was, thus fixed on basis of land revenue on MeraDoem land and the case was triable by Sub-Judge--Even if, in the alternative, value of land in question, was fixed on basis of whole Khata, wherein such land was entered, suit remains to be triable by the Sub-Judge concerned--Respondent's contention that even if land revenue was assessed on land in question, and the same was not paid having been exempted by the Government, pecuniary jurisdiction of Court could not be assessed on that basis was repelled for the simple reason that payment of land revenue was not mandatory portion of procedure laid down for assessing suit valuation--Land Revenue which was payable to Government and not its actual payment is key to procedure for valuation--Trial Court and First Appellate Court had concurrently maintained that plaintiff had preferential right over land as compared to vendee which has not been rebutted by defendant High Court had also not set aside finding of Courts below on that score--High Court's finding that Trial Court had no jurisdiction to try suit in question, in view of consideration amount entered in sale-deed was set aside while judgments and decrees passed by Trial Court and Appellate Court decreeing plaintiff's suit were restored." In view of above discussion, order passed by the Additional District Judge, Kahutta (Haveli), Camp Dhirkote is not maintainable and is set aside by accepting this appeal. The case is remanded to the Sub-Judge, Dhirkote with the observation that the case is triable by the Sub-Judge who shall proceed under law. The jurisdictional value is computed as Rs,3,00 for the land revenue as Rs, 5 under rule 1(a). So far as the other case filed to challenge the gift-deed and consolidated with this suit and dismissed by the trial Court and the order upheld by the Additional District Judge, is concerned, does not require any resolution as the counsel for the appellant stated before the Court that this appeal does not relate to that case. Consequently the order passed by the trial Court and upheld by the Appellate Court, shall remain undisturbed.