P L D 1954 Lahore 240 (PLP)

The words used in the section are rather wide and unless we interpret the words "no injunction or other order" as ejusdem generis with seizure, distress etc., inconvenient results may follow. Bashir Ahmad and M. M. Shaft, for Appellants. Mahmood Ali, for Respondents. KAIKAUS, J.‑‑This regular second appeal arises out of a suit for pre‑emption. One Mst. Viro, widow of Sohna, entered into an agreement with Muhammad Ibrahim and Mst. Sakina Bibi defendant‑respondents for sale of 245 kanals and 9 marlas of land and two houses, situate in village Tarsikka, tehsil Daska, District Sialkot, detailed in the plaint. Instead of performing her agree ment, Mst. Vito sold the same property to Wadhawa Singh and others on 6th of February 1943, and Muhammad Ibrahim and Mst. Sakina Bibi defendant‑respondents filed a suit for specific performance of the contract of sale impleading as defendants Mst. Viro as well as Wadhawa Singh and others, the vendees. This suit was decreed on the 29th of September 1948 and in pursuance of this decree for specific performance the learned Subordinate judge who tried the suit executed a sale‑deed of the property‑in suit on behalf of Mst. Virain favour of Muhammad Ibrahim and Mst. Sakina Bibi defendant‑respondents on the 25th of November 1948. Nur Ahmad, Muhammad Yusaf and Muhammad Amin plaintiff‑appellants filed a suit for pre‑emption on the basis of the sale‑deed executed by Court. The right of pre‑emption was based on the plaintiffs being owners in the Patti in which the property is situate, as well as in the estate. The suit was contested by the defendants on the sole ground that the sale in dispute being one in the execution of a decree, it was not a sale within the meaning of that term as used in the Punjab Pre‑emption Act and, therefore, the suit was not maintainable. Both the Courts below, relying upon a Division Bench of this Court in Muhammad Wazir v. Chaudhri Jahangiri Mal and others (P L D 1949 Lah. 1.), decided this issue in favour of the defendants and dismissed the suit. The second appeal came up for hearing before us. We were of the opinion that Muhammad Wazir v. Chaudhri Jahangiri Mal and others was not correctly decided and we referred the matter to a Full Bench. The Full Bench answered the question in favour of the plaintiff‑appellants and held that the sale in dispute was subject to pre‑emption. The case has now been referred back to the Division Bench for decision, the Full Bench having only answered the question as to the maintainability of the suit. As the case had been fought only on the ground that the sale in dispute was not subject to pre‑emption, we had expected that we would only be passing a formal order of acceptance of the appeal after the case came back from the Full Bench. Mr. Mahmood Ali, who appears for the defendant‑respondents, has, however, raised a new point. He did tell us in the Full Bench that if the Full Bench was going to decide the whole case he had another point to raise. He was, however, told that the Full Bench was going only to answer the question and the Division Bench was to decide the case. The point now taken up by him is that the property in dispute is evacuee property, for Mst. Viro the original vendor, and Wadhawa Singh and others, the first vendees, are evacuees. He refers to indications on the record that the persons above‑named are in fact evacuees. He relies on the, fact that they are non‑Muslims and that the decree of specific performance was an ex carte decree although previous to the partition the case must have been seriously contested, for it had been instituted in 1943, and was pending till the partition. If the persons above named are in fact evacuees, a number of results will, according to the learned counsel, follow. In the first place, the sale in dispute which took place on the 29th of November 1948 would be invalid, for the sale of evacuee property which is not sanctioned or confirmed by the Custodian would be void, on account of section 12 of Ordinance No. XVIII of 1948 which was in force when the sale‑deed was executed by the learned Subordinate Judge. The second result, according to the learned counsel. would be that the decree in the suit for specific performance passed on the 29th of September 1948 would be invalid and without jurisdiction. That decree proceeded on the basis of an adjudication that the‑sale in favour of Wadhawa Singh and others was not binding on the plaintiffs in that case. That would be an adjudication whether the property was or was not an evacuee property and would be barred by section 11 of the West Punjab Protection of Evacuee Property Act (VII of 1948) which was in force when the suit was decreed: The third result would be that we would be unable to pass any decree, in the present case, as section 12 of Ordinance XV of 1949, as amended, prevents a Court from passing any orders with respect to evacuee property. Learned counsel has not only urged these grounds in arguments but has also put in an application for amendment of his written statement so as to include the additional plea that the property in dispute is an evacuee property. We entertain no doubt that apart from the application for amendment, defendant respondents have no right to put forward the objections they have now taken. All these, objections are based on the ground that the property in dispute is evacuee property. That is a question of fact. It is not just the option of the party to take a new plea of fact in a Court of Appeal even though that question of fact relates to property in dispute being evacuee property. Section 34 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, as amended, only prevents a Court from entertaining or adjudicating upon any question arising in any suit or other proceedings as to whether any property is or is not evacuee property. It does not lay down that a Court is bound at all stages of a suit to allow an additional plea as to the property in dispute being evacuee property and then to stay the suit in order that the matter may be referred to the Custodian for decision. As far as pleas of fact are concerned, a party is entitled only to have such pleas adjudicated upon as are incorporated in his pleadings or such pleas as he may be allowed to incorporate therein by permission of Court. Whereas legal pleas can be raised at any stage of a case because there is the duty cast upon the Court even without objection by any party to decide according to law, pleas of fact can be taken only in a pleading. We should not be understood to mean that questions for decision in case, even though they are questions of fact, must necessarily arise out of pleadings of parties. Ordinarily, such questions would arise only out of pleadings. However, in cases where there is some limitation placed on the jurisdiction of a Court, the application of which limitation depends upon the decision of a question of fact, it may be possible for a Court even to take up a point suo motu in order to determine whether it has jurisdiction to pass a particular order. If, for instance, there is an application before an executing Court for sale of land belonging to a person who appears to the Court to be a member of a notified agricultural tribe, the Court may require proof of such person being not a member of such a tribe before it orders sale of the land. There is no legal bar to the Court requiring such proof in matters which relate to the jurisdiction of Court. The Court is not bound to take its facts from the parties who may be colluding. However, that is a matter for the Court to consider and it is not the right of a party to raise such pleas. If the Court determines to adjudicate upon a particular question in order to decide its own jurisdiction, then that matter also becomes a question for decision in that suit or proceeding. If the Court were suo mote to take up the question whether the property in dispute is or is not evacuee property in order to decide a question relating to its own jurisdiction, it may then be said that there is a question for adjudication before the Court as mentioned in section 34 (a) of Ordinance XV of 1949. But unless the Court does exercise its discretion to raise such questions it cannot be said that the question has arisen so as to attract the application of section

34. We may point out here that the limits placed by section 12 on powers of Courts are not quite easy to define. It runs as follows :‑ "Exemption from legal process‑(1) Property which has vested in, or of which possession has been taken by the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court, or any other authority and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court, or any other authority. (2) Upon the commencement of this Ordinance, any such legal process as aforesaid subsisting immediately before such commencement shall cease to have effect, and all evacuee property in custody of any Court, or Receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian." The marginal note only speaks about exemption from legal process. After mentioning seizure, distress, attachment etc., the section goes on to say that no Court would pass any "other order of whatever kind" in respect of evacuee property. It is difficult to imagine that the intention was not only to exempt evacuee property from legal process but even to prevent Courts from passing any kinds of order with respect to it. Let us take the case of a suit of pre‑emption where an evacuee had purchased certain property of which he is now the owner and another person wants to pre‑empt the sale. Can the Court not pass a decree for pre‑emption at all? At the time when a Court passes a decree, the property is still evacuee property. It is only when money is deposited in accordance with the decree of Court that the owner. ship stands transferred to the plaintiff. In redemption suits where either the mortgagor or the mortgagee is an evacuee it is only a Civil Court which can pass an order for redemption. Similarly under the Restitution of Mortgaged Lands Act it is only a Special Collector appointed under that Act who can extinguish a mortgage which is in favour of an evacuee or in which an evacuee is the mortgagor. Liquidation and insolvency proceedings are other examples of cases where Courts have to pass orders with respect to evacuee property. Under the Alienation of Land Act it is only the Collector who can terminate a mortgage of land effected by a member of an agricultural tribe before the period of the mortgage actually expires. Section 12, while it provides that no Court or other authority shall pass an order relating to evacuee property, does not at the same time make any provision that orders which were in the past to be made by other authorities can now be made by the Custodian. All the orders which we have mentioned above can still be passed only by Courts and officers other than the Custodian. The words used in the section are rather wide and unless we interpret the words "no injunction or other order" as ejusdom generis with seizure, distress etc., inconvenient results may follow. Nor are we prepared to accede to the request that at this stage of the case the defendants should be allowed to amend their written statement. They did not take this plea in the trial Court, the first appellate Court and even when the appeal was for the first time argued before us, though during the hearing before the Full Bench learned counsel for the defendants did say that there was another point he wanted to raise. The plea which he now wants to take is entirely inconsistent with the previous position of the defendants: They had accepted previously the validity of the sale and held themselves out to be the owners of the property. They now want to attack the sale as invalid and to say that the property does not in fact belong to them but vests in the Custodian. Although even an inconsistent plea may in exceptional cases be allowed to be taken by means of an amendment, the ordinary rule is that no party should be allowed to take up the plea which is inconsistent with his previous pleading. There is the additional fact that the plea is being taken at a very late stage. It is not a bona fide plea to protect the defendants' interest, the object being only to non‑suit the plaintiffs somehow. The plea is also of a kind which is regarded as foreign to a suit for pre-emption. It would not ordinarily lie in the mouth of a vendee to say that in fact there is in his favour no sale, although we should not be understood to lay down tot such a plea is legally barred. The plaintiffs are prepared to take whatever title they can get. The Custodian is no party to these proceedings and if the property is in fact evacuee property, he is not bound by this judgment and can take any action he may think proper. As result, this appeal is accepted and the suit is decreed, but in the circumstances the parties shall bear their own costs throughout. The plaintiffs shall deposit in the trial Court Rs. 4,500 for payment to Muhammad Ibrahim and Mst. Sakina Bibi defendant‑vendees within two months. If the amount mentioned above is not deposited within the time fixed. the suit of the plaintiff‑appellants shall stand dismissed with costs in all Courts. A. H. Appeal accepted.