' This judgment shall also decide R.S.A. No,57 of 1987 as the same question of law and fact is involved in both the cases.
2. Brief facts giving rise to the present appeal are that Muhammad Ramzan appellant filed a suit for possession through preemption in respect of land which was sold by Ghulam Muhammad in favour of Muhammad Yahya respondent through registered sale-deed dated 24-7-1974 for an ostensible sale price of Rs,94,888. The appellant claimed his superior right of pre-emption on the basis of being the real brother of the vendor as well as being co-sharer in the Khata and owner of the estate. The appellant also disputed the ostensible sale price and contended that the actual price fixed and paid was Rs,59,518 and not as stated in the sale-deed.
3. The suit was resisted and objections were taken as to limitation, waiver, court-fee and pre- emptibility of the suit-land. On merits, besides asserting that the sale price was actually fixed and paid as Rs,94,888 it was contended that the respondent had incurred other expenses upon the execution of the sale-deed and for effecting improvement. The superior right of pre-emption, however, was not denied.
4. From the pleadings of the parties, following issues were framed:-- ' Issues
(1) Whether this suit is barred by time? OPD
(2) Whether the plaintiff has waived his right of pre-emption and is estopped by his act and conduct from bringing the suit? OPD (3)Whether the suit-land is not pre-emptible?
(4)Whether this suit is not properly valued for the purposes of court-fee?
(5)Whether the ostensible sale price Rs,94,888 was fixed in good faith or actually paid?
(6)If the above issue is not proved what was the market value of the suit-land at the time of its sale? OPP Parties (7)Whether the defendant has effected any improvement over the suit-land if so with what costs and with what effect? OPD
(8) Whether the defendant incurred any incidental charges? If so, how much and with what effect?
OPD
(9) Whether the defendant is entitled to get special costs? OPD
(10) Relief.
5. Muhammad Ramzan appellant produced Muhammad Ishaq, Patwari Baldia, Bahawalpur (P.W.1)
Ghulam Farid (P.W.2) Mohib Ali (P.W.3) and Ahmad Din, Special Attorney of the appellant as (P.W.4).
He also tendered in evidence plan of Municipal Committee (P.1), copy of sale-deed (P.2), copy of Jamabandi (P.3), Khasra Girdawari (P.4), statement of Net Profits (P.5), statement of Rates (P.6.) and (P.7), statement of average sale price from 1-8-1970 to 31-7-1975, Muhammad Yahaya respondent produced Ghulam Muhammad (D.W.1), Munazzar Hussain, Stamp Vendor (D.W.2) ,Muhammad Akhtar Petition Writer (D.W.3), Allah Din (D.W.4), Muhammad Hanif (D.W.5), Muhammad Idrees (D.W.6), Abdur -Razzaq (D.W.7), Liaquat (D.W.8), Nazar Muhammad (D.W.9) and Muhammad Yahaya appeared as (D.W.10). He also produced agreement to sell (D.1) dated 21-5- 1975, receipt of advance money. (D . 2) , sale-deed (D.3), statement of net profits (D.4), receipt for payment of District Council fee (D.5), sale-deed from Muhammad Ramzan in favour of Muhammad Azeem for 9-1/2 Marlas (D.6) and sale-deed dated 16-9-1975 (D.7).
6. The learned trial Court found that the appellant had superior right of preemption and that actual sale price was Rs,94,888. Awarding the expenses incurred by the respondent vendee, a decree for preemption was passed in favour of the appellant subject to the payment of the sum of Rs,99,161.32 vide judgment and decree dated 28-9-1977. The appellant was directed to deposit the said amount by 10-10-1977 failing which the suit shall be deemed to have been dismissed with costs.
7. Two appeals were preferred. The appellant/pre-emptor filed an appeal against the determination of the sale price. The vendee also filed an appeal challenging the decree of pre- emption passed in favour of the appellant.
8. Both the appeals were decided' together by an Additional District Judge, Bahawalnagar. Vide common judgment and decree dated 18-3-1987, the appeal of the appellant/pre-emptor was dismissed while the appeal of the vendee was accepted. As a result the ' suit of the appellant stood dismissed.
9. At this stage it is relevant to note that the original valuation for the purposes of jurisdiction was given in the suit as less than Rs,25,000 which, at that time was the limit of pecuniary jurisdiction of the District Judge.
10. On the other hand, the vendee initially preferred his first appeal before this Court considering difference in the price viz. 39,643.32 between one claimed by the appellant and that fixed by the Court to be the jurisdictional value. At one stage the appellant applied for transferring his own appeal from the Court of the District Judge to this Court which was allowed and both the appeals came up before this Court. Nevertheless as the pecuniary jurisdiction of the District Judge was enhanced to Rs,50,000 through an amendment in section 18 of the Civil Court Ordinance on 20-9- 1978, both the appeals were transmitted to the learned District Judge for disposal.
11. It is also to be noted that when the first appeal of the appellant came up for hearing before District Judge on 9-10-1977, it was not accompanied by the copy of the judgment or decree.
Nonetheless the learned First Appellate Court issued an interim injunction on 9-10-1977 whereby the operation of the decree of the trial Court was suspended.
12. The salient points which found favour with the First Appellate Court vide judgment and decree dated 18-3-1987 were as under:--
(a) that the first appeal filed by the appellant before the District Judge, was not competent as the appeal was beyond his pecuniary jurisdiction;
(b) that the appeal was not competent also for the reason that it was not accompanied by a copy of the judgment and more importantly by a copy of the impugned decree .Of the trial Court;
(c) that the order, dated 9-10-1977 whereby the operation of the decree of the trial Court was suspended was coram non judice and without lawful authority;
(d) that without a lawful order of suspension of the decree of the trial Court, the failure of the appellant to deposit the decretal amount within the prescribed time would result in the dismissal of his suit.
13. In this regular second appeal, Choudhary Naseer Ahmed, Advocate for the appellant has raised the following legal propositions:--
(a) that the Suits Valuation Act, 1887 is fully applicable to the areas forming part of the former Bahawalpur State. According to him the rule framed under section 3 (ibid) notwithstanding that the rules are provincial in nature shall also apply to the Bahawalpur State as the source of power of these rules is the Suits Valuation Act, 1887 which is a Central Statute and which is fully applicable.
Continuing his argument, it was submitted that under the said rules the original value of the suit for the purpose of jurisdiction shall be the jurisdictional value for the purpose of appeal also. Referring to the jurisdictional value to be fixed in a pre-emption suit relating to the agricultural land, it was submitted that this value is thirty times the Revenue payable in respect of the land in question. As this value was less than Rs,25,000, the appeal was correctly filed before the learned District Judge, and was fully maintainable.
' The learned counsel relied upon Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393, Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284, Sadar Din v. Elahi Bakhsh and another PLD 1976 Lah.
1.
(b) that the appellant had applied for the copy of the judgment and decree of the trial Court but the same was not provided by the Copying Agency and-as such could not be appended with the memo. Of the appeal and that in such circumstances, fact that certified copies of the judgment and decree was not appended with the appeal was not fatal;
(c) that the order dated 9-10-1977 passed by the District Judge was a valid order passed with jurisdiction and had the effect of suspending the order of deposit of the decretal amount within the specified period;
(d) that in any event when a pre-emptor is challenging the quantum of the sale price he is not obliged to deposit the decretal amount. He placed reliance upon the case of Muhammad Ismail v.
Muhammad Ashraf PLD 1982 Lah. 197, Shah Wali v. Ghulam Din PLD 1966 SC 983 and Samanda v.
Muhammad Sharif and others PLD 1966 (W.P.) Lah. 414;
(e) that there was no evidence on the record to prove that the sale price mentioned in the sale- deed was fixed in good faith or actually paid; and
(f) that there was no evidence to prove waiver against the appellant.
14. On the other hand, Mr. M.M. Bhatti, Advocate for respondent contended that the value for the pecuniary jurisdiction of the Appellate Court would be the difference between the ostensible sale price mentioned in the sale-deed and the one specifically claimed by the pre-emptor in his suit.
According to him this difference exceeded Rs,25,000. The appeal filed by the appellant before the District Judge on 8-10-1977 exceeded the pecuniary jurisdiction of that Court and the appeal before the said Court was incompetent. He further contended that the interim order passed by the learned District Judge on 9-10-1977 by which the decree of the trial Court was suspended was without any lawful authority. According to him any order passed by the Court would be ineffective upon the decree of the trial Court.
' According to the learned counsel for the respondents the appellant did not have the protection of any lawful injunctive order in his favour and his failure to comply with the direction of the trial Court rightly resulted in the dismissal of his suit.
' As regards the failure of the appellant to append a copy of the judgment and decree of the trial Court, he relied upon the provisions of Order 41, rule, 1, C.P.C. To contend that an appeal in such a situation is no appeal in the eye of law and was not liable to be entertained.
' Upon merits, regarding sale price of the pre-empted land, it was contended that both the lower Courts have arrived at a concurrent finding of fact which is not liable to be disturbed in revision.
15. Arguments have been heard and record perused.
16. It is correct that upon the strength of The Central Law (Statutes Reform) Ordinance, 1960 as amended through the Central Laws Statutes Reforms (Amendment) Ordinance, 1961, the Suits Val'uation Act, 1887 and the rules framed thereunder. Are applicable to the area forming the erstwhile Bahawalpur State. This position continued to operate despite the promulgation of the provisions of West Pakistan (Dissolution) Order, 1970 as envisaged by Article 19 thereof.
17. Applying this principle to the case in hand; there is no difficulty in holding that the original value of the suit for the purpose of jurisdiction is that which is given in the suit and that it is this jurisdictional value which shall govern the forum of appeal. For the jurisdictional value in a pre- emption suit relating to agricultural land, this value is fixed by the rules under the Suits Valuation Act as under:--
1. Suits for possession of land.---In suits for the value of the land for purposes of jurisdiction, shall be held to be as follows:--- (a)
(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 the revenue so payable.
' Explanation:--
2. Land assessed to land revenue.--- In suits to enforce a right of preemption in land, the value of the land for the purposes of jurisdiction shall be calculated by the preceding rules."
18. It is thus clear that the jurisdictional value so fixed in the present case is less than Rs,25,000 and the appeal filed by the appellant before District Judge was not incompetent on this score.
19. The next contention raised by the learned counsel for the appellant regarding the effect of non- filing of the copy of the impugned decree along with the appeal, however, is not well-founded.
According to Order 41, rule 1, C.P.C. The memo. Of appeal shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispensed therewith) of the judgment on which it is founded. A bare perusal of this provision of law-makes it obvious that the copy of the decree Appellate Court in an appropriate case may only dispense with the copy of the judgment but not the decree. There is divergence of opinion whether an appeal without being accompanied by a copy of the decree should invariably be dismissed. Even if the more lenient view is adopted i,e, to grant time to the appellant to enable him for furnishing the impugned decree on the record, yet the main question in the present case would be as to the legality and efficacy of an interim order passed by an appellate Court before such a decree is placed on the record.
20. According to the judgment of the trial Court passed on 28-9-1977, the plaintiff/appellant was to deposit the sale price by 10-10-1977 failing which his suit shall be deemed to have been dismissed.
The appellant chose to file the appeal on 8-10-1977 i,e, barely two days from target date. This appeal was admittedly not accompanied by a copy of the impugned judgment and decree. The appeal, so filed violated Order 41, rule 1, C.P.C. In other words on 9-10-1977, the First Appellate Court was not in legal season of the appeal. However, the learned First Appellate Court proceeded to pass the following order on 9-10-1977:-- "Counsel for the appellant. Learned counsel for the appellant submits that the copies of the judgment and decree have not been supplied in spite of the- fact that urgent fee was paid. Copy of the judgment and decree be filed on 23-10-1977. The appellant has submitted an application for suspension of the decree appealed against. Notice of the same be issued to the respondent for the date fixed. In the meantime relying on the authorities reported in 1974 SCMR 24, PLD 1973 Lah. 481 and 1976 SCMR 420, the operation of the decree passed by the trial Court shall remain suspended."
21. It is evident from the above, that the First Appellate Court allowed the appellant to place the copy of the judgment and decree on the record on 23-10-1977. Simultaneously, an interim order was granted suspending the operation of the decree of the trial Court. It may be true that if the appeal is not properly constituted on the date of institution the defect may be rectified by producing the copy of the decree on the record subsequently. This Court is, however, concerned with the status of the proceeding and the legality of the proceedings taken in between such periods.
22. In order to pass any effective order, a Court must act in accordance with the procedure prescribed by the law which confers the said jurisdiction upon it. It can.. Thus safely be concluded that before an appeal is regarded as a duly constituted proceeding, the Court which is siezed of the same is not competent to pass any effective judicial order in the same. As a sequel, the appellant allowed the target date set by the trial Court for deposit of decretal amount to expire, which resulted in the legal consequence of the dismissal of his suit.
23. The decree in a pre-emption suit is governed by Order 20, rule 14, C.P.C. The said provision of law is reproduced:-- Decree in pre-emption suit.--- (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall- -
(a) specify a day on or before which the purchase money shall be so paid, and
(b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid the suit shall be dismissed with costs."
24. Without the production of any lawful injunctive order the decree of the trial Court shall take effect on the prescribed date i,e,. 10-10-1977 and the suit of the pre-emptor shall be dismissed with costs.
25. The next submission of the learned counsel for the appellant is that in a suit for pre-emption where the pre-emptor challenges they sale price, he shall not be obligated to deposit the pre- emption amount. For this proposition reliance has been placed upon Muhammad Ismail v.
Muhammad Ashraf PLD 1982 Lah.
197. Strength for this proposition is also sought from the case of Shah Wali v. Ghulam Din PLD 1966 SC 983, Samanda v. Muhammad Sharif and others PLD 1966 Lah. 414 and Ahmed Bux and another v. Khurshid Akbar Khan PLD 1978 Lah.
838.
26. In the cases of Muhammad Ismail v. Muhammad Ashraf, Shah Wali v. Ghulam Din, Samanda v.
Muhammad Sharif and Ahmed. Bux v. Khurshid Akbar Khan (supra), it was held that upon the filing of an appeal by the pre-emptor, the date fixed by the trial Court for deposit of pre-emption money can be varied by the Appellate Court. In the present case, however, on the date when the first Appellate Court suspended the decree of the trial Court, no validly constituted proceedings were before it and the order passed by the first Appellate Court on 9-10-1977 was devoid of legal validity.
27. Upon the amount of the sale price, both the learned lower Courts have concurrently found that the sale consideration of. Rs,94,888 was actually paid and in this respect reliance was placed upon the agreement Exh.D. 1 and ,Exh.D.2 in respect of the payment of a sum of Rs,35,370 paid as earnest money and the remaining sale price was paid before the Registrar. For coming to this conclusion the statements of Muhammad Hanif, D.W.5 and Muhammad Idrees D.W.6 were relied upon besides the deposition of the scribe Muhammad Akhtar who appeared as D.W.3. The learned counsel for the appellant has not been able to point out any material misreading or non-reading of this evidence on the record.
28. The learned counsel for the respondent concedes that the evidence on the record is not sufficient to discharge the onus of waiver.
29. As a result of the above discussion, this regular second appeal has no merit and is hereby dismissed.