1987 PLP 2891 (MLD)

S.15--Civil Procedure Code (V of 1908), S.100--Finding of fact not disturbed by First Appellate Court--Effect of such finding in second appeal--Where finding of fact that pre-emptor was a co-sharer with vendor was not disturbed by First Appellate Court, same, held, would be regarded to be final for all purposes--Co-sharer's right to pre-empt being justified in law finding of First Appellate Court was set aside while that of Trial Court was restored in second appeal by High Court. Ch. Riasat Ali for Appellant. C.M. Sarwar for Respondent. Date of hearing: 1st November, 1987. This Regular Second Appeal calls in question the judgment/ decree dated the 18th of November, 1982, of the learned Addl. District Judge, Gujrat, whereby the respondents-vendees' appeal was accepted and the appellant/ pre-emptor's suit was dismissed. 2. The impugned sale took place by a registered deed dated the 29th of January, 1976, Exh.D.3. The appellant brought the present suit to pre-empt it on the qualifications firstly that he was a real brother of the vendor and secondly that he was co-sharer in the khata. The respondents=vendees contested the suit denying the former's better right of pre-emption on both the counts. There were issues on various points which for the purposes of present appeal may not be referred to. The trial Court decreed the suit upholding both the qualifications asserted by the appellant. However, in appeal the learned Additional District Judge reversed it taking a view that possession under the sale having been delivered on the 5th of March, 1974, in pursuance of an agreement of even date, the suit was hit by limitation. He further recorded a finding that the appellant failed to prove himself to be a real brother of the vendor. Although he did not disturb the other qualification, namely, of the appellant being a co-sharer with the vendor in the same Khata, yet he dismissed the suit on the point of limitation. 3. I have perused the impugned judgment particularly to see if there was any issue in regard to the limitation. It is noteworthy that no such objection was taken in the written statement nor reflected in the issues and yet the learned Additional District Judge at appellate stage allowed it to be not only considered but also used it as a vehicle to non-suit the appellant. This approach has been bitterly criticised by learned counsel on bebalf of the appellant because according to the general norm only those objections have to be adhered to which are taken up in the pleadings. According to him, even the plea as to expiry of limitation had to be clearly stated and in the absence of any such averment in the written statement, the appellant could not have been taken by surprise. In the grounds of appeal its mention was equally not made and thereby he was taken completely unawares. It was emphasized that the point of limitation was not abstract inasmuch as it was here made to depend upon the vendee taking possession of the land under the sale and since this part of the controversy related to a question of fact, the appellant could not have been denied a right to rebut it by producing evidence. He assailed the placing of reliance upon the previous agreement Exh.D4 which was not pressed in the written statement and had indeed beer. much earlier cancelled with the consent of parties. That is why a new sale-deed was completed a couple of years later without making even an oblique reference to the previous contract. 4. The way the point of limitation was allowed to be introduced in appeal, without raising it in the written statement as well as the ground$ of appeal was open to serious objection. Indeed, it was a mixed question of fact and law. The appellant had had a right to rebut it by producing evidence and for that the usual course was to have framed an appropriate issue. The method adopted by the lower appellate Court in that behalf was not countenanced by the rules of procedure and, therefore, the finding recorded by it on, the point cannot be sustained. It is reversed. 5. Mr. C.M. Sarwar for the respondents tried to show that the Khasra Girdawari Exh.D.5 amply proved that they were tenants at the time of sale and as such had a better right as compared to the appellant. I am afraid the trial Court analysed the entries of the Khasra Girdawari D.5 in the threadbare manner finding that it related only to fifteen out of forty six Khasra Numbers included in the sale; that only one of the respondents-vendees, namely, Hakim occupied only two Khasra Numbers viz. 63/11/1 and 64/16 as tenant at the time of sale while others were not at all shown to be tenants of any of those Khasra Numbers; and that they appeared to have been joined by Hakim as strangers. Sinker was said to be applicable, to his case and he will lose like others. 6. Similar was the position in regard to the finding as to whether or not the appellant was real brother of the vendor. Mohammad Inayat respondent-vendee admitted the appellant to be a son of the vendor whereas actually he was his brother. This misdescription was discussed by the trial Court in some detail before whom learned counsel for the respondents made a flat admission that he was a brother rather than son of the vendor. Such an admission made by a counsel at the Bar is to be accepted for all times and that the lower appellate Court should not have allowed the respondents to go back upon it. This finding of the trial Court was not specifically questioned in the grounds of appeal. Mr. Sarwar made a request to wait for the decision of the Supreme Court where the availability of right of pre-emption of a brother in Shariat is under adjudication. I would have accepted this prayer but the other qualification, namely, the appellant being a co-sharer with the vendor was not upset in the impugned judgment. It was a finding of fact and having not been disturbed by the lower appellate Court shall be regarded to be final for all purposes. It was claimed that Shariat permitted a co-sharer to pre-empt. 7. As a result, the R.S.A. is accepted, the impugned judgment and decree are- set aside and instead those of the trial Court are restored. There is no question of making any direction now to the appellant to deposit the pre-emption amount as he has already complied with the decree passed by the lower Court. Parties are left to bear their own costs. H.B.T./F-42/L Appeal accepted.