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Regular Second Appeal No.112 of 1982, decided on 9th April, 1985.

‑‑‑S8.4 & 15‑‑Punjab Alienation of Land Act (XIII of 1900), S.2(3)‑ Partial pre‑emption, principle of‑‑Applicability‑‑Pre‑emptor sought entire sale of disputed land to be pre‑empted without mentioning tubewell sunk in that land separately‑‑ Tubewell sunk in pre‑empted land was part of that land in accordance with definition of 'land' contained in S.2(3) of Act 1900‑‑Suit, could have been hit by partial pre‑emption had that tubewell been sunk beyond land in dispute‑‑ Tube‑well located in disputed land-‑Principle of partial pre‑emption, held, would not a ply.

‑‑‑Ss.4 & 15‑‑Civil Procedure Code '(V of 1908), O.VII, R.11(b)(c)‑ Deficiency in court‑fee, making up‑‑Court precedents, limitation was not bar for making up deficiency of court‑fee‑‑When valuation had erroneously been fixed, opportunity was to be granted to pre‑emptor to make up deficiency in court‑fee.

Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289 ref.

‑‑‑Ss.4 & 15‑‑Evidence Act (I of 1872), 5.115‑‑Pre‑emption suit‑ Waiver‑‑None of witnesses of vendees had stated that any of pre‑emptors was present in bargain‑‑Simple fact that pre‑emptors were close relatives of vendors, held, would not prove waiver.‑‑[Waiver].

M.Sultan Alam for Appellant.

Muhammad Mahmood Bhatti for Respondents.

Dates of hearing: 25th March and 9th April, 1985.

Shamsher Khan son of Lal Khan has assailed the validity and the legality of the judgment and decree, dated 13‑7‑1982 pronounced by Mr. Nazir Ahmad Ansari, the learned Additional District Judge, Vehari through this regular second appeal who had dismissed .the suit of the appellant on the basis of his findings on issues Nos.2 and 3.

2. The facts leading to the instant second appeal in substance are that the land measuring 133 Kanals and 4, Marlas situate in Chak No.239/W.B., Tehsil Burewala, District Vehari belonged to Hamidullah, Muhammad Arshad and Mst. Nusrat Bibi who sold the same in favour of the respondents for Rs.5,00,000. The appellant sought to pre‑empt the sale of the land in dispute on the of his superior right of pre‑emption on payment of Rs.2,00,000. The respondents denied the preferential right of pre‑emption of the appellant and reiterated that a sum of Rs.5,00,000 was fixed in good faith and actually paid as the sale price to the vendors and this was market price of the land in dispute. The respondents raised the pleas of limitation, erroneous valuation, waiver, partial pre‑emption and certain other points which are apparent from the following issues:‑‑

(1) Whether the rival pre‑emptor Muhammad Ashraf who has filed a suit for possession through pre‑emption in respect of the suit land before the Collector, Burewala, is a necessary party in the suit O.P.D.

(2) Whether the suit is for partial pre‑emption O.P.D.

(3) Whether the suit is not properly valued for the purposes of court‑fees and jurisdiction and proper court‑fee was not paid O.P.D.

(4) Whether the suit is barred by time O.P.D.

(5) Whether the plaintiff has waived his pre‑emptive right O.P.D.

(6) Whether the defendants are entitled to recover Rs.15,000 as costs of improvement in case of success of the suit O . P. D .

(7) Whether the plaintiff has got a superior pre‑emptive right in respect of the suit land as against the vendee‑defendants O.P.P.

(8) Whether a sum of Rs.4,70,000 was fixed in good faith or actually paid as a sale price of suit land O . P. P .

(9) If issue No. 8 is not proved, then what was the market value of the suit land at the time of its sale O.P. Parties.

(10) Relief.

3. The learned trial Court decreed the suit of the appellant on payment of Rs.2,83,000 including one‑fifth of the pre‑emption money already deposited by the pre‑emptor, but in appeal the learned Additional District Judge augmented the sale price to Rs.5,00,000 and held that the suit was hit by the principle of partial pre‑emption and the valuation for the purposes of court‑fee and jurisdiction was incorrect and dismissed the suit of the appellant.

4. Before me issues Nos. 2, 3, 8 and 9 have been mooted. It is pertinent to note that the sale‑deed shows that the land in dispute was sold for Rs. 4, 70, 000 whereas the tubewell was separately sold for Rs.30,000. In the plaint tubewell has not separately been mentioned, but the entire sale has been sought to be pre‑empted. Rs.5,00,000, the alleged sale price has also been mentioned in the plaint. Mr. Muhammad Mahmood Bhatti, Advocate, learned counsel for the respondents has scrupulously conceded that the tubewell is a part of the land in dispute and covered by the definition of land contained in the Alienation of Lands Act and had the tubewell been sunk beyond the land in dispute, then the suit would have been hit by partial pre‑emption, but at present, since the tubwell is located in the disputed land, the principle of partial pre‑emption would not apply. Issue No.2, therefore, goes against the respondents.

5. As regards issue No.3, it was pointed out that the value of the tubewell was separately, given in the sale‑deed and the valuation for the purpose of court‑fee should have been fifteen times of the annual net profits of land plus Rs.30,000, the value of the tubewell. I do not subscribe to this view because the tubewell according to the definition contained in Alienation of Lands Act is a part of land and in this manner land was sold to the respondents for Rs.5,00,000. In this manner, there was no necessity of assessing the value of the tubewell separately.

6. It was next contended that the suit was instituted on 14‑10‑1980 and in accordance with the amendment of Court Fees Act, 1870 contained in the Punjab Finance Act of 1973 where the net profits have arisen from the land the possession of which is being sought, then its valuation is to be computed according to the crops during the year next before the date of presenting the plaint. In Land Record Manual, Chapter 9, Rule 9.1, the inspection of the Kharif crops and Rabi crops commences from 1st October and 1st March, respectively, so the crops for Rabi and Kharif, 1980 should have been considered in assessing, the net profits. The plaintiff pre‑emptor has tendered statement of net profits M.P. 8 which pertains to Kharif 1979 and Rabi 1980 and evinces the amount net profits of Rs.8,797.16. It is an erropeous Goshwara and correct statement of net profits is contained in Exh.D.6 which shows annual net profits of Rs.15,797. The valuation for the purpose of court‑fee should have been assessed, on fifteen times of the annual net profits of Rs.15,797.

7. It has been contended that when the suit was instituted, the Nirkh Nama for cotton and sugarcane crops was not available as no net profits had accrued from these crops till then. Learned counsel for the respondents contends that there is a fixed Nirkh Nama of each crop and it is revised by the Board of Revenue when needed. Learned counsel for the appellant had no answer for this argument and in this manner, the valuation for the purpose of court‑fee should be based on the Goshwara Exh.D.6. Needless to note that the trend of the Supreme Court precedents at present is that limitation is no bar for making up the deficiency of the court‑fee and when the valuation has erroneously been fixed, then an opportunity is always granted to a pre‑emptor to make up the deficiency of the court‑fee. The point that the .............................situation has been discussed in Siddiqui Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 SC 289. I, therefore, order the appellant‑pre‑emptor to make up the deficiency of the court‑fee computing annual net profits on 86.15,797 on or before 9‑5‑1985 otherwise his plaint shall stand rejected.

8. As regards issue No.8, Rs,2,83,000 were paid before the Sub‑Registrar. Rs.1,17,000 were paid to the vendor before the registration of the sale‑deed. Rs.50,000 were paid to Muhammad Ashraf, the brother of the pre‑emptors who had earlier negotiated a bargain with the vendor and had paid an advance money of Rs.50,000, Rs.20,,000 were paid through bank and Rs.30,000 are stated to have been paid as sale price of the tubewell. It may be noted that no receipt has beep furnished for the payment of Rs.1,17,000 and no documents of the bank have been produced regarding the payment of Rs.20,000. The bald statement of Muhammad Ashraf, D.W.1, is not enough to show that he had received Rs.50,000 from his brother after the bargain in dispute was transacted. The amount which was actually paid as the sale price of the land in dispute appears to be Rs.2,83,000, the market value of the land in dispute which according to the learned counsel for the appellant comes to 86.1,397 per Kanal falls short of the sale price of Rs.2,83,000.

9. Learned counsel for the respondents with reference to Mhand and 2 others v. Mst. Amattul Hafeez and others P L D 1954 Lah. 278, Faqir Muhammad v. Muhabbat Khan and others P L D 1958 (W.P.) Lah. 918 and Qutub‑ud‑Din v. Muhammad Siddique and others P L D 1969 Lah. 418 has contended that although he has nut filed any cross‑objection under Order XLI, Rule 22, C . P. C . yet he can argue the point of waiver contained in issue No.5. Learned counsel for the appellant has not addressed any adverse arguments against the principle enunciated in the precedents quoted above. But it may be added that there is not even an iota of evidence on the file to show waiver. None of the witnesses of the defendants has' stated that any of the pre‑emptors was present in the bargain. The simple fact that they are the close relatives of the vendors does not prove waiver. Issue No.5 has rightly been decided by the learned lower Courts.

10. I, therefore, accept this appeal and set aside the judgment and decree dated 13‑7‑1982 pronounced by Mr.Nazir Ahmad Anwar, the learned Additional District Judge, Vehari and restore that of the learned Civil Judge, Burewala with the variation that the deficiency of the court‑fee is to be made up. The deficiency of the court‑fee as observed earlier should be made up on or before 9‑5‑1985 failing which the plaint shall stand rejected. Due to the divided success of the parties, they are left to bear their own costs of this appeal.

H. B. T. Appeal accepted.

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