P L D 2010 Supreme Court 965 (PLP)

MIAN SAQIB NISAR, J.--In both the noted matters same judgment dated 16-1-2009 passed by the Peshawar High Court has been assailed by the parties hereto.

2. Briefly stated, the facts of the case are that the petitioner in CP No.179-P of 2009 filed a suit for the pre-emption against the respondents qua the sale of the suit property in favour of the later on the basis of his superior right, being the co-sharer and having a common passage. The respondents contested the matter mainly by taking exception to the pre-emptor's superior right and about the making of Talabs. On account of the pleadings of the parties issues were framed, trial was conducted, and the learned Civil Judge vide judgment and decree dated 26-9-2007 while deciding both the aforementioned issues in favour of the petitioner/pre emptor allowed the suit. Aggrieved of the above respondents/vendees initiated an appeal which was dismissed by the Additional District Judge on 24-1-2008. These two decisions were challenged by the respondents in C.R. No. 226 of 2008 before the Peshawar High Court and the learned Judge in Chamber while considering the sale Mutation No. 2518 attested on- 10-2-2001 in favour of the respondents, came to the conclusion that as they have purchased 1/16 share in the same Khata, resultantly being co-sharers are entitled to half share of the suit-land in terms of section 20 of the N.-W.F.P. Pre-emption Act, 1987, thus by partly allowing the revision, decrees of the two Courts were accordingly modified.

3. The appellant is aggrieved of the judgment and it is submitted by his learned Counsel, that the impugned judgment is absolutely illegal and suffers from serious error in the exercise of the revisional jurisdiction, because it has never been the case of the respondents in defence that they have purchased any share in the Khata and thus entitled to the benefit of section 20 of the Act ibid.

4. Heard. Accordingly the respondents/vendees in their defence never raised a plea regarding the purchase of share in the said Khata through Mutation No.2518 dated 10-2-2001, obviously no issue was framed by the trial Court thus requiring any determination by the Court in this regard; they never throughout sought any amendment in their written statement to add the said plea. In the grounds of appeal filed by respondents such plea was never propounded and resultantly the Appellate Court also was not supposed to give: the decision in this context. Even in the Revision Petition, the plea of co-ownership was never set out, however, it seems that through some Miscellaneous Applications, the respondents agitated their claim to share the suit property as per section 20 of the Pre-emption Act, 1987, which was allowed by the High Court. Whether the respondents could not do so and the High Court could award then the half share of the suit-property is the only question involved in the matter, which needs to be resolved in the light of settled principles of law that no person can be allowed to prove his case beyond the scope of his pleadings. In this regard, reliance can be placed upon the judgments reported as Binyameen and 3 others v. Chaudhary Hakim and another 1996 SCMR 336, Mst. Salima Bibi v. Mst. Halima Bibi 1994 SCMR 1858, Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469 and Hakim Ali v. Muhammad Salim and another 1992 SCMR 46.

5. In this case, as pointed out above, the respondent never took up the defence of having purchased the share in the Khata and this is the reason why no issue was framed; this plea was never a part of their appeal or grounds of revision, therefore only for the reason that they were able to produce in the evidence, the mutation No. 2518 could not be of any advantage to them for claiming the share on the basis of section 20 of the Act. The arguments that such mutation has been admitted in evidence by the trial Court without any objection from the petitioner, suffice it to say that even that being so, the evidence which is brought on the record by a litigant, even not subjected to objection by the opposing side, but it is outside the purview of his pleadings, should not be looked into by the Court, rather should be ignored. Resultantly the High Court on account of the above could not consider the said mutation and grant relief to the respondent, which was not within the parameters of their defence. The learned High Court in this regard has committed a grave illegality in the exercise of its jurisdiction, thus the impugned judgment cannot sustain in law.

6. As regards the Civil Appeal No. 20-P of 2009 is concerned, which has been filed by the defendants/vendees against the concurrent findings of the first two Courts on the relevant issue, we are not convinced if these judgments are erroneous on account of fact or the law. No misreading or non-reading in arriving the actual conclusions regarding the superior right of the plaintiff or making of the Talbs has been established.

7. Resultantly, by converting the Civil Petition No. 179-P of 2009 into appeal the same is allowed and the impugned judgment of the High Court is set aside whereas we do not find any merit in appeal which is hereby dismissed. M.H./M-55/S Appeal allowed.