JUDGMENT MAULVI ANWARUL HAQ, J.-- The respondents purchase suit land measuring 637 kanals, 6 marlas from Raza Muhammad, Qutab Sher sons of Haji Ata Muhammad. The sale was effected by means of Court decree dated 11.11.1980 issued on the basis of an award. On 3.11.1981 the petitioners claiming to be real brother of the vendors filed a suit for possession of the suit land by pre- emption, It was alleged in the plaint that land had in fact been sold for Rs. 1,40,000/-. The respondents Nos. 1, 2 and 5 filed their written statements on 3.4.1982 and took the plea that out of the said land respondents Nos. 1 and 2 had purchased 477 kanals, 6 marlas of land for Rs.2,30,000/- while respondent No. 5 had purchased 80 kanals land for Rs.40,000/- and so is the case with respondents Nos. 3 and 4. Their plea was that at the time of sale they were occupying suit land as tenant. Respondents Nos. 3 and 4 in their written statement stated that they had purchased 80 kanals of land for Rs.20,000/- while respondent No. 5 had purchased 80 kanals land for Rs.20,000/-.
These respondents prayed that the suit may be decreed. Issues were framed. Evidence of the parties was recorded. The learned Trial Court decreed the suit vide judgment and decree dated 5.11.1984 subject to deposit of Rs. 1,40,000/-. The respondents Nos. 1, 2 and 5 filed a first appeal which was heard by the learned Addl. District Judge, Khushab, who allowed the same and while maintaining the decree passed by the learned Trial Court against respondents Nos. 3 and 4 set aside the decree passed against respondents Nos. 1, 2 and 5. This was done vide judgment and decree dated 20.3.1985.
2. M/s. Sh. Naveed Shaheryar and Syed Muhammad Kaleem Ahmad Khurshid, learned counsel for the petitioners argued that the value of the suit for the purposes of Court-fee as well, as jurisdiction was affixed oh the plaint as Rs.2,75,430/- and as such the learned Addl. District Judge was not possessed of pecuniary jurisdiction to hear and decide the appeal filed by respondents Nos. 1,2 and
5. Rely upon the case of Abdul Majid and others v. Muhammad Walayat Khan (PLJ 1987 S.C. 423).
Further contend that the sale in favour of the respondents was not divisible and as such notwithstanding the fact that respondents Nos. 1, 2 and 5 were occupying suit land as tenant, they sank with respondents Nos. 3 and 4 who had no right equal or superior that of the petitioners.
3. Malik Noor Muhammad Awan, learned counsel for the respondents relies on Section 11 of the Suits Valuation Act, 1887, to contend that objections having not been raised in the manner prescribed before the learned first Appellate Court, the same cannot be raised now. On merits supports impugned judgment and decree Of the learned Addl. District judge with reference to the pleadings of the parties as also background of sale wherein not only shares were specified but also price that had been paid by each set of the vendees.
4. I have gone through the record of the learned Courts below with the assistance of learned counsel for the parties, It is true that in the amended plaint filed on 6.11.1982 it was stated in para 7 of the plaint that the value of the suit for the purposes of Court-fee and jurisdiction Is affixed I 5 times of the net annual profit accruing from the suit land during the year before the institution of the suit which comes to Rs.2,75,430/- and that Court-fee of the value of Rs. 15,000/- has been affixed on the plaint. It is also true that for determination of the forum of appeal as held in the case of Illahi Bakhsh and others v. Mst. Bilqees Begum (PLD 1985 S.C. 393) and said case of Abdul Majeed and others (PLJ 1987 S.C. 423) relied upon by the learned counsel for the petitioners, valuation fixed in the plaint is also relevant. However, Section 11 of the Suits Valuation Act, 1887 places embargo in specific terms upon entertainment of objection to the pecuniary jurisdiction of the learned Courts below in the circumstances stated in the section unless and until the learned Appellate Court is satisfied for the reasons to be recorded by it in writing, that the suit or appeal was over valued or under valued and over value or under value thereof has prejudicially affected the disposal of the suit or appeal on its merits.
5. Learned counsel for the petitioners with reference to the said case of Abdul Majeed have tried to argue that this was a case where the first Appellate Court had no jurisdiction to deal with the appeal and as such Section M does not apply. To my mind the argument is without any force.
Before proceeding further I may reproduce the following excerpts from the said judgment in the case of Abdul Majeed:- "It is well-established that Section 11 of the Suits Valuation Act, 1887 has effect of curing want of jurisdiction caused by erroneous or improper valuation and treats over valuation, or under valuation as mere irregularity contemplated under Section 99 of Civil Procedure Code."
Thereafter their lordships proceeded to hold that in the case before their lordships there was no allegation of under valuation or over valuation, In fact a reading of the judgment would show that none of the parties alleged that the value affixed in the plaint was not correct.
6. Now present case is of possession by pre-emption. So far as the Court-fee is concerned the same has to be assessed on the basis of net annual profit accruing from suit land for the year preceding filing of the suit. These profits were assessed at Rs. 18,362/- and 15 times thereof comes to Rs.2,75,430/-. What has to be seen is as to whether under the law the value was to be the same or otherwise. The matter was set at rest in the case of Ilahi Bakhsh and others (PLD 1985 S.C. 393) wherein the dictum laid down in the case of Jan Muhammad and others v. Dr. Abdul Ghafoor, etc. (PLD 1966 S.C. 461) was followed and the conclusion arrived at by this Court in the case of Sadar Din v. Elahi Bakhsh and another (PLD 1976 Lah. 1) "that for ascertaining the forum of appeals in land suits under Section 18 of the Civil Courts Ordinance the value of the original suit as determined under the Rules framed under Section 3 of the Suits Valuation Act for purposes of jurisdiction will be the determining factor and not the market value as sale price of the subject-matter of the suit was affirmed". Now under Rule 1 of the Rules framed under the Suits Valuation Act 30 times revenue payable is to be the value for the purposes of jurisdiction in a suit to enforce a right of pre-emption (Rule 2 refers).
7. The respondents Nos. 1, 2 and 5 alongwith their grounds of appeal appended a statement that the land revenue payable in respect of suit land is Rs.220.21 and 30 times thereof comes to Rs.6606.30. This amount of land revenue payable was neither questioned before the learned first.
Appellate Court and nor before this Court. I have no hesitation at all in accepting the said figure to be correct. This being the position the value for the purposes of jurisdiction was Rs.6606.30 and the learned Addl. District judge was competent to hear and decide the appeal. This is certainly a case of over valuation and squarely falls within the saving clause i.e. Section 11 of the Suits Valuation Act, 1887.
8. Coming to the merits of the case, having examined pleadings and evidence on record I find myself in complete agreement with the learned counsel for the respondents Nos. 1, 2 and 5 tha' by all means sale was divisible. The award, on the basis whereof decree dated 11.11.1980 followed is available on record as Exh. D4. It clearly states that 477 kanals, 6 marlas land has been sold to the respondents Nos. 1 and 2 for Rs.2,20,000/-, 80 kanals has been sold to respondents Nos. 3 and 4 for Rs.40,000/- while 80 kanals has been sold to respondent No. 5 for Rs.40,000/-. In the' very plaint the petitioners have proceeded to state as follows in para 2:- {{Urdu Text}} To similar effect are pleadings of the two sets of the defendants in the case. Haji Ahmad respondent No. 1 appeared as DW2 and stated the manner in which the land was purchased, the shares and price paid separately. I do not find any thing in his cross-examination challenging the said statement.
9. Learned counsel for the petitioners lay much stress on a portion of cross-examination of Sadiq Hussan DW2 to the following effect:- {{Urdu Text}} The said portion taken in isolation may give an impression as gathered by the Teamed counsel for the petitions but the statement read as whole does support the contention, of respondents Nos. 1/ 2 and 5. Needless to state that criteria laid down for judging the divisibility or otherwise of a sale laid down in the case of Abdullah and 3 others v. Abdul Karim, etc. (PLD 1968 S.C. 140) and later upheld in the case of Mir Ahmad and others v. Attaullah alias Atta Muhammad and another (PLD 1991 S.C.
210) and Muhammad Riaz and others v. Fateh Muhammad and others (PLD 1991 S.C. 210) is that not only share in land be specified but the price had also be separately specified and paid. The said criteria stands squarely met within the present case. This civil revision is accordingly dismissed leaving the parties to bear their on costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.