P (PLP)

P. L. R. 1950, Lah. 201=P. L. D. 1950, Lah. 143 relied on. (e) Pre-emption‑No concern of Court to find out source from which plaintiff got, money. If the plaintiff has a legal right to pre‑empt, it is unnecessary for the Court to consider from what source he is going to procure the pre‑emption money. I. L. R. 47 All. 470 and I. L. R. 17 Lah. 373 relied on. Muhammad Yaqub Ali Khan, for Appellant. Sh. Muhammad Shafi, for Respondent No.

2. JUDGMENT.‑Mehr Muhammad filed a suit against Maula Dad on 14th January 1949. It was in respect of the sale of a house in village Ranjha, District Jhelum, which was sold by one Kalu to Maula Dad, defendant 1, by sale‑deed executed on 16th January 1948, and registered on 17th January 1948. Maula Dad sold the same house to Ali Ahmad on 17th January 1949 i.e., three days after the institution of the suit by Mahr Muhammad and a year after the registration of the sale‑deed in favour of Maula Dad. Ali Ahmad was consequently impleaded as a defendant on 23rd February 1949. Ali Ahmad filed a written statement on 23rd March 1949 admitting that he had purchased the house in question, by a registered sale‑deed, dated 17th January 1949, from Maula Dad; that Maula Dad had admitted Ali Ahmad's superior right of pre‑emption, and had, therefore, sold the house to him. He further asserted that the plaintiff's right of pre‑emption was not superior to his and the suit must, therefore, fail. The trial Court framed the following issues :‑ (1) Has the plaintiff got a superior right of pre‑emption ? (2) Was the sale amount bona fide fixed or actually paid ? (3) What is the market value of the property in dispute ? (4) Whether Maula, Dad sold the house in dispute to Ali Ahmad. If so, when and what is its effect ? (5) Relief. It was found after considering evidence produced by the parties, that Kalu had sold the house in dispute to Maula Dad by a sale‑deed, executed on the 16th and registered on the 17th January 1948, and Maula Dad had sold the same house to Ali Ahmad on IM January 1949. Maula Bakhsh (P. W. 2) admitted that Mehr Muhammad had become an owner in the village by purchase but had no right in the shamilat. The plaintiff Mehr Muhammad was, therefore, held to have a superior right of pre emption as against Maula Dad but not as against Ali Ahmad who was a proprietor (asal malik) in the village with a share in the shamilat deh. Because Ali Ahmad had purchased the house on 17th January 1948, within one year from the date of registration of the sale‑deed in favour of Maula Dad, in assertion of his superior right, the plaintiff's suit was dismissed. The price paid was found to be Rs. 830 and that was held to be the market value of the house also. From this judgment of the trial Court Mehr Muham mad, plaintiff, filed an appeal in the Court of the District Judge, Jhelum. The only point urged in the Appellate Court was that the sale by Kalu in favour of Maula Dad was effected on 16th January 1948 and actual physical possession was delivered on the same day, according to the recital contained in the sale‑deed. The period of limitation should, according to Article 10, Limitation Act, have been computed from .16th January 1948 and not from 17th January 1948. It was conceded that Ali Ahmad's right to pre‑empt the sale by Kalu in favour of Maula Dad was superior to that of the plaintiff‑appellant; but, because he had purchased the house on 17th January 1949: the period for the assertion of his pre‑emptive right, as computed from the date pf delivery of possession mentioned in the sale‑deed, i. e., 16th January 1948, had expired. The only evidence in support of the plaintiffs con tention that actual physical possession was made over by Kalu to Maula Dad on 16th January 1948 was the recital in the sale‑deed. There was no other evidence on this point. The learned District judge relied on Dharam Singh v. Kirpal Singh (A. I. R. 1923 Lah. 31) where it was held that the delivery of possession to the vendee on the day of his purchase would be of no avail against the pre‑emptor, unless the possession delivered was physical posses sion. The mere delivery of symbolical proprietary possession would not be sufficient. Where there is no proof that physical possession of the property was taken by the vendee on the date on which the sale‑deed in his favour was executed, the period of one year within which the pre‑emptor is entitled to exercise his right of pre emption must be taken to have commenced on the date on which the deed in favour of the vendee was registered. A formal recital regarding the delivery of possession, like a formal recital regard ing the price, which is to be found in nearly every sale‑deed, is a very weak piece of evidence even between the parties to the deed, as against a person who is not a party to the deed it is no evidence at all. The learned District judge held that the transfer of actual physical possession by Kalu to Maula Dad on 16th January 1948 was not proved and that Ali Ahmad had bought the house in exercise of his superior right of pre‑emption within the period of one year prescribed for the assertion of that right. The appeal was, therefore, dismissed with costs. From this judgment and decree of the learned District judge the plaintiff‑appellant has filed this second appeal. Mr. Yaqub Ali has argued on behalf of the appellant that Ali Ahmad cannot deny the correctness of the recital regarding possession contained in the sale‑deed to which Maula Dad was a party because Ali Ahmad is a representative‑in‑interest of Maula Dad. This is incorrect. A pre‑emptor does not claim through or under the vendor or the vendee. He asserts a right to be sub stituted for the vendee. The right of pre‑emption exists antece dently to the sale, which is a condition precendent not to the existence of the right but to its enforceability. In Dharam Singh v. KirPal Singh, the vendor had sold some land to Bhagat Ram, who sold it to Maya Das and Waya Das sold it to Dharam Singh. The re cital in the sale‑deed in favour of Bhagat Ram regarding the delivery of, possession was held to be no evidence against Dharam Singh. Learned counsel for the appellant has tried to distinguish this case on the ground that the sale in Dharam Singh v. Kirpal Singh was of proprietary and occupancy rights which were not capable of being given physical possession of. That is so, but the law stated in that case is applicable to the facts of this case and the recital regarding possession is no evidence against Ali Ahmad. Learned counsel for the appellant has further argued that the trial Court should have framed an issue as to whether the sale by Maula Dad in favour of Ali Ahmad was not a benami transaction, as alleged in the amended plaint. If an, issue to this effect was necessary in the interests of the appellant, he should have asked the trial Court to frame it. It was held in Badrul Islam Ali Khan v. MO.' Ali Begum (I. L. R. 16 Lah. 782 at page 802) that the framing of proper issues, which arise out of the pleadings of the parties, is the duty not only of the Court but also of the counsel appearing for the parties. In T. Devarajulu Naidu v. Kondanmal (80 I. C. 929), it was alleged by the defendants, in their written statement, that the Will was not genuine ; but no issue was framed as to the factum of the Will. There was, nothing to show that the defend ants had asked that there should be‑ an issue regarding the genuineness of the Will. It was held that issues are framed not only with reference to written statements but also with reference to statements made at the time when they are framed and, if there is anything wrong with the issues, it is for the defendants to apply to the trial Court to put them right. This point was not urged in the lower Appellate Court and may be taken to have been given up. I have held in Karim Bakhsh v Qadir Bakhsh (P. L. R. 1950 Lah. 201) that where the lower Appellate Court mentions specifically certain points which were argued before it and the judgment is silent on other points raised in the memorandum of appeal it may, in the absence of any affidavit to the contrary, be presumed that those points were abandoned. In the present case the judgment of the lower Appellate Court definitely states that except the point of limitation no other point was argued on behalf of the appellant. Apart from the fact that the question of the sale in favour of Ali Ahmad being benami was not raised in the lower Appellate Court, the question is hardly relevant in a pre‑emption case. It was held in Dhalla v. Mst. Fateh Bibi (I. L. R. 17 Lah. 373 at page 376), that in a suit for pre‑emption the Court has no concern with the motive which may induce a plaintiff to claim pre‑emption or with the source from which funds necessary to enforce the claim may be drawn. In Abhainandan Prasad v. Pashoat Nath Pande (I. L. R. 47 All. 470), Sulaiman and Kanhaiya Lal, JJ. said that the mere fact, that a plaintiff has instituted a suit for pre‑emption at the instigation of other persons world not disentitle him from getting a decree. If the plaintiff has a legal right to pre‑empt, it is unnecessary for the Court, to consider from what source he is going to procure the pre‑emption money. The failure of the trial Court to frame an issue regarding the benami nature of the sale by Maula Dad in favour of Ali Ahmad does not, therefore, affect the merits the case. It was further urged by the I‑earned counsel for the appellant that Rule one clause (5) of Order XIV, Civil Procedure Code, requires that the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what, material points of fact or of law the parties are at variance, nd shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Learned counsel for the respon dent retorts by pointing out that, according to Order VI, Rule 14, Civil Procedure Code, every pleading shall be signed by the party and his pleader (if any) unless the party pleading is by reason of absence or for other good cause unable to do so ; and Rule 15 provides that every pleading shall be verified by the party pleading, or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. The original as well as the amended plaint in this case is neither signed nor verified by the plaintiff and the suit should have been dismissed on this ground alone. This also s a point which should have been taken in the trial Court and not in second appeal. 1n any case, it is not neces sary to go into this matter because the finding of the lower Appellate Court that delivery of actual physical possession to Maula Dad on 16th January 1948 has not been proved is correct and the period of limitation must be computed from the date of registration of the sale deed, i. e., 17th January 1948. Ali Ahmad has deposed that he had sent word to Maula Dad that he was going to file a suit for pre‑emption and Maula Dad has stated, in his written statement dated 22nd February 1949, that he had admitted the superior claim of Ali Ahmad and had, consequently, sold the house in question to him within the period of limitation. It was held in Dharam Singh v. Kirpal Singh (A. I. R. 1923 Lah. 31) that if a pre‑emptor, succeeds in having the property transferred to himself from the purchaser by private arrangement, instead of bringing a suit, it would not be right to say that he has not exercised his right of pre‑emption. I, therefore, hold that the house in question was purchased by Ali Ahmad in exercise of his superior right of pre‑emption, within the prescribed period of one year, and dismiss this appeal with costs. K. M. A. Appeal dismissed.