Find a Lawyer

Regular Second Appeal No.7 of 1985, decided on 22nd December, 1986.

---S.115--Punjab Pre-emption Act (I of 1913), S.4--Court Fees Act (VII of 1870), S.7-V-(d)--Right of pre-emption of two sets of pre-emptors upheld by Trial Court and Appellate Court--Valuation of suits for purposes of court-fee worked out on basis of statement on net profits filed in ore of the consolidated suits which was exempt from payment of court-fee--Objection with regard to improper valuation of court-fee, held, was not tenable since the two suits related to same land and having been consolidated valuation of statement of net profits in one of them was sufficient--Appellants themselves claiming exemption from payment of court-fee in appeal on basis of valuation of consolidated suits would be debarred to raise such plea in their second appeal before High Court.

A sale of 48 Kanals of agricultural land, situated in village Sialkot, Tehsil Shorkot, district Jhang, effected by means of registered deed, dated 11-10-1977, for an ostensible price of Rs.27,000 in favour of Ghulam Jafar, appellant No.1, and Ghulam Sarwar, Muhammad Anwar and Ghulam Shabbir (respondents Nos.3 to 5), was subjected to pre-emption by means of three suits, one filed by Muhammad Hayat and Rajab respondents Nos.l and 2 on the ground of their being co-sharers in the Khata of the suit land and, the second, by Iman Ali and Safdar Ali (respondents Nos.6 to 7) to pre-empt it on the ground of being the collaterals of the vendors, being co-sharers in the Khasra of the suit land and also owners of the Estate. The third suit was filed by Haji Ram Din and Azam Din who, however, withdrew their suit and thus only first two suits remained in the field and were consolidated to be tried together. Whereas one of the original vendees, namely, Ghulam Jafar retained his 1/4th share of the land to himself, before the expiry of the one year's limitation for filing of suit for pre-emption and before even the lodging of these claims, the remaining three, namely Ghulam Sarwar, Muhammad Anwar and Ghulam Shabbir had sold out 36 Kanals of the land in suit to the other two appellants Allah Ditta and Muhammad Yousaf by means of registered sale-deed, dated 1-6-1978 for an ostensible sale price of Rs.27,000. The respective pre-emptors were cross -impleaded, in the first suit as defendants Nos.5 and 6 and defendants Nos.7 and 8, respectively. The subsequent purchasers Allah Ditta and Muhammad Yousaf were also impleaded as defendants Nos.9 and 10. Their vendors, the three original vendees, however remained on the record as defendants Nos.2 to 4 but the names of the third set of pre-emptors (who had been impleaded as defendants Nos.7 and 8) were ordered by the trial Court on 25-2-1980 to be deleted in consequence of withdrawal of their suit. The vendees as well as the rival pre-emptors contested the suits which were set down to be tried on a total of nine issues whereof issues Nos.l, 6 and 7 alone are reproduced:-

"(1) Whether the plaintiffs and the rival pre-emptors have better right of pre-emption as against the defendants/vendees If so, what is the position of pre-emptors inter se O.P. Pre-emptors.

(6) Whether the valuation of both the suits is incorrect for purposes of court-fee and jurisdiction O.P.D.

(7) Whether the vendee/defendants have effected any improvements on the suit land If so, to what compensation they are entitled in case of decree O.P.D.-vendees."

Parties led their evidence, whereupon learned trial Judge found that the rival pre-emptors Imam Ali and Safdar Ali had been proved on the basis of pedigreetable (Exh. D. I) to be the collaterals of the vendors and the remaining pre-emptors were proved to be the co-sharers in the Khata of the suit land on account of copies of mutation (Exhs.P.2 to P.4). He held that vendee-defendants did not possess either of the qualifications and concluded that being the collaterals of the vendors defendants Nos. 5 and 6 have a superior right of pre-emption against both the defendant-vendees and the rival pre-emptors who have a superior right to pre-emption only against the defendant-vendees and Consequence, after repelling the objection with regard to incorrect valuation of the suits on the ground that there had not been produced any evidence on the point and that the valuation of 15 times of the net-profits was correctly fixed by the pre-emptors which fell below Rs.25,000 passed a decree on 17-5-1982 for possession of land, with a first right in Imam Ali and Safdar Ali, pre-emptors and a postponed right, to take effect in the event of their failure to deposit the pre-emption money by the prescribed date 17-6-1982, in the other set of pre-emptors comprising Muhammad Hayat and Rajab, upon payment till 30-6-1982 of sum of Rs.33,750 which was directed to be payable to the defendant-vendees in the shares of Rs.6,750 to Ghulam Jafar, one of the original vendees, and Rs.27,000 to Allah Ditta and Muhammad Yousaf, the subsequent vendees.

2. An appeal there against was filed in the Court of learned District Judge, Jhang by Ghulam Jafar one of the original vendees jointly with the two subsequent vendees, wherein both the sets of pre-emptors and the three original vendees were impleaded as respondents. The appeal was entrusted for hearing to a learned Additional District Judge, before whom only the above reproduced issues Nos.l, 6 and 7 were contested. In concurrence with the trial Court, learned Additional District Judge upheld the findings under issues Nos.l and 7 to repel the claim for cost of improvements for the reasons that the evidence led in support thereof was not only contradictory but was also vague and could not be accepted on account of its being insufficient and unreliable. The objection with regard to improper valuation of the suits was also turned down with the observation that since the two suits related to the same land and had even been consolidated, therefore, production of the statement of net-profits in one of them was sufficient and it was not necessary for the other pre-emptors to produce another statement regarding the same profits. He also took notice of the fact that an objection on the point had not been raised by the vendees in the trial Court and by affirming the trial Court's findings with regard to superior right of pre-emption of the two sets of pre-emptors, learned Additional District Judge dismissed the appeal on 22-12-1984. The said vendees have now come up in this Court in this second appeal.

3. It was contended by the learned counsel that the observation appearing in the appellate judgment to the effect that statement of net-profits filed in one of the suits was sufficient, was not borne out from the record. The same was accordingly sent for. Records of all the three suits have been received and perused.

4. Apart from there being no need to duplicate the statement of net-profits in the consolidated trial of suits, the fact remains that the valuation of the suits for purposes of court-fee had been worked out to be Rs.6,752 which amount is exempt from payment of court-fee and has been so entered even in the opening sheet of this appeal by the appellants themselves to claim the exemption from payment of court-fee and none has been paid in this second appeal either. Hence nothing turns upon the contention of the learned counsel which is accordingly repelled.

5. No other point has been argued before me.

6. There is no force in this second appeal which is accordingly dismissed in limine.

A.A. /G-22/L Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.