1985 PLP 1723 (SCMR)

Tanvir Ahmad, Advocate‑on‑Record for Respondents. Date of hearing: 3rd March, 1985. SHAFIUR RAHMAN, J.‑‑The petitioners who have been unsuccess ful as defendants in resisting a pre‑emption claim seek leave to appeal against the judgment of the Lahore High Court, dated 5‑3‑1984 whereby a regular second appeal filed by them was dismissed in limine. A suit for possession of land in exercise of a superior right of pre‑emption was filed by the plaintiff‑respondents on 30‑5‑1967. The petitioners filed their written statement on 31‑3‑1973 contesting the suit on various grounds. It was finally decreed on 22‑6‑1982. While their first appeal was pending in the Court of the Additional District Judge on 28‑11‑1984, the petitioners took up a new ground in resisting the claim of the respondents. It was that the property stood included within the boundaries of the Cantonment on the strength of a notification, which issued on 17‑4‑1968 and as the pre‑emption law did not extend within the cantonment limits the plaintiff‑respondents could not maintain the suit. The learned Additional District Judge rejected this ground observing as follows:‑ "There was no issue on this point. Learned counsel for the appellants produced a photo copy of notification in which same lands have been included in the limits of Lahore Cantonment. From the above notification it is not clear that the land in dispute has been included in Lahore Cantonment." The same ground was pressed in the regular second appeal and it was rejected by the High Court too with the following observations:‑ "Before the learned appellate Court they moved application for getting the respondents non‑suited for this reason. The respondents did not admit that the land lay within the Cantonment limits. The appellants did not seek leave to amend the written statement so as to take this plea nor did they apply for production of additional evidence to substantiate it. The question whether the land actually lies within the limits of Lahore Cantonment is one of the fact and can be determined after issue on the point is settled and the parties lead evidence thereon. It cannot be taken for granted that the land lies within the Cantonment limits especially when the respondents have denied this fact. It is too late in the day for the appellants to have the question adjudicated upon here in appeal." The learned counsel for the petitioners has in the first instance contended that a pre‑emptor in order to be successful must have a superior right of pre‑emption not only on the date of sale but also at the time of the institution of the suit and till a decree is passed in his favour. The plaintiff‑respondents according to the learned counsel for the petitioners did not satisfy this requirement as the land had before the decree was passed in their favour become exempt from pre‑emption law on account of the notification, dated 17‑4‑1968. As regards the admissibility and effect of this notification, the learned counsel referred to sections 56, 57 and 83 of the Evidence Act to contend that the Court should have itself determined the legal effect of such a notification. In applying the notification and giving effect to it a finding of fact had to be recorded and that was whether the land in fact was included within the limits of the Cantonment or not. As this was a question of fact it required proper pleadings, issues and evidence for a decision thereof. Judicial notice can certainly be taken of the notification but a finding of fact could not follow such recognition and the proof required in the matter could not be dispensed with. The Courts have taken a correct view of the law and there is no merit in this petition Leave to appeal is, therefore, refused. A.A. Leave refused.