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‑‑S. 96‑‑‑Court Fees Act (VII of 1870), S. 7(vi)‑‑Punjab Pre‑emption Act (I of 1913), S. 21‑‑Pre‑emption suit‑‑First Appeal before High Court‑‑ Maintainability of‑‑On objection raised by vendees/appellants before Trial Court that suit value fixed by pre‑emptor for purposes of court‑fe , and jurisdiction was less pre‑emptors /respondents enhanced value as claimed by vendees‑‑Objection to valuation before High Court being totally opposed to one already taken before Trial Court, contention of appellants that appeal would lie before District Judge and not before High Court, held, could not be accepted.

‑‑‑S. 96‑‑Punjab Pre‑emption Act (I of 1913), S. 15‑‑Pre‑emption suit‑‑Preferential pre‑emptive right, determination of‑‑Effect of decision of Shariat Appellate Bench P L D 1986 SC 360‑‑Preferential pre‑emptive right on basis of co‑ownership in pre‑empted land is not taken away by decision of Shariat Appellate Bench of Supreme Court P L D 1986 SC 360‑‑Pre‑emption Act, 1913 having also not so far been amended so as to apply rule of precedent with retrospective effect, decree already passed in favour of pre‑emptors in suit instituted by them under law in force at time of sale on basis of better right of pre‑emption than that of vendees, held, could not be re‑opened in appeal even if appeal was in continuation o suit.

Government of the N.‑W.F.P. v. Said Kamal Shah P L D 1986 SC 360 ref.

Jari Ullah Khan for Appellants.

Ch. Khurshid Ahmad for Respondent . ...

Date of hearing: 18th October, 1986.

ABAID ULLAH KHAN, J.‑‑This appeal is directed against the judgment and decree of the learned Civil Judge, Lyallpur (now Faisalabad), dated the Ist April, 1979, whereby the suit of respondents 1 and 2 for possession by pre‑emption of the land measuring 233 Kanals 10 Marlas and of a share in 1hatas Nos. 20, 18/2 and 19 in dispute, situate in Chak No. 124/G.B., Tehsil Jaranwala, District Lyalipur (now Faisalabad), was decreed on payment of Rs.2,91,000. Nisar Ahmad and Muhammad Salim, sons of Fateh Ali, sold the land for Rs.2,90,000 and their share in the lhatas in question for Rs.1,000 to the appellants. Mutation No. 256 touching the sale of the land and Mutation No 236 in respect of the sale of the share of the Ihatas were entered on the 19^th and attested on the ' 8th March, 1974. The sale consideration is no longer in dispute, 2. Muhammad Azhar Iqbal and Muhammad Akram, sons of Zafar Ali, respondents 1 and 2, who are father's brother's sons of the vendors and whose superiority of pre‑emotive right, though contested in the first instance before the learned trial Court, was not doubted by the learned counsel for the appellants before this Court instituted suit to pre‑empt the sale on the 27th March, 1975. Respondents 1 and 2 fixed the value of the cause for purposes of court‑fee and jurisdiction at Rs.91,000. On the appellants' objection that the value of the suit for purposes of court‑fee ‑and jurisdiction was in no case less than Rs.2,00,000 the pre‑emptors revised it upwards to Rs.2,10,727.90 being equivalent to fifteen times the net profits arising out of the land for the year next before presentation of the plaint plus the value of the share of the Ihatas, which the appellants practically accepted. Though the appellants raised plea of limitation and described the suit to be bad for multifarious ness of causes of action yet the learned counsel for the appellants did not dispute the findings of the learned trial Court on these points going against the appellants.

3. The learned counsel for the appellants made two‑fold submission:

He contended that the value of the suit for purpose of jurisdiction ought to be less than Rs.2,00,000 and in that event the appeal would be heard by the District Court. His stand before this Court is opposed to the one the appellants took before the learned trial Court where they clamoured that the value was in excess of Rs.200,000 and when the suit was valued by respondents 1 and 2 at Rs.2,10,727.90 they, did not take any exception thereto. In these circumstances it is difficult to accept the argument of the learned counsel.

4. The learned counsel maintained that in view of what has been laid down by the Shariat Appellate Bench of the Supreme Court of Pakistan in its decision in the case Government of the N.‑W.F.P. v. Said Kamal Shah P L D 1986 SC 360, respondents 1 and 2 would be taken to be shorn of any right of pre‑emotion and as the instant appeal was continuation of the suit, the suit merited dismissal. It may be noticed that respondents 1 and 2 had claimed preferential pre‑emotive right as against the appellants on the basis of their being collateral heirs of the vendors, co‑sharers of the land in dispute and tenants of the land. Co‑Qwnership of the land, as is visible from the entries of the Jamabandi, Exh.P.3, would endow them even according to the aforesaid decision of the Supreme Court with the right of pre‑emotion superior to that of the appellants who do not possess such a qualification The argument of the learned counsel is not tenable because the Punjab Pre‑emotion Act, 1913, has not yet been amended so as to apply the rule of the precedent with retrospective effect. Therefore, the decree already passed in the suit cannot be re‑opened. Respondents 1 and 2 under the law in force at the time of sale, institution of the suit and passing of the decree in the favour were no doubt in possession of right of pre‑emotion better than that of the appellants. The judgment banked upon by the learned counsel cannot be applied at this stage to non‑suit them.

5. In view of the above the appeal fails and is dismissed with costs.

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