2005 PLP 1853 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition for leave to appeal has been directed against the judgment, dated 4-3-2002 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, Rawalpindi, in Regular Second Appeal arising out of a suit for pre-emption.

2. The petitioner purchased the suit-land for a consideration of Rs.27,000 on 23-3-1979 and Bahadur Khan respondent in the present petition claiming superior right of pre-emption filed the suit for pre-emption. The petitioner contested the suit which was ultimately decreed by the trial Court vide judgment dated 24-9-1981. The appeal preferred by the petitioner was dismissed by a learned Additional District Judge, Rawalpindi, with modification of decree to the extent of sale consideration which was enhanced to Rs.80,000 from Rs.30,000 fixed by the trial Court. The Regular Second Appeal filed by the petitioner was dismissed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, vide impugned judgment. The operative paragraphs of the judgment are as follows:-- "(5) it may also be mentioned here that the dispute between the parties before this Court is only in regard to the sale consideration and no other issue has been agitated. (6) D.Ws. stated before the learned trial Court that the sale consideration of Rs.80,000 had been paid in their presence. The P.Ws. have not been able to rebut this evidence because none of them was present at the time of the sale transaction or the payment of the sale consideration. P.W.1 Muhammad Akram, the deed-writer, has admitted that agreement shows the payment of Rs.80,000 as the sale consideration. The land in dispute was sold through Civil Court decree. The decree also shows the payment of Rs.80,000 as the sale consideration. The learned trial Court has not given any cogent reason for disbelieving this evidence and the learned Appellate Court, therefore, correctly held that Rs.80,000 had actually been paid as sale consideration by the defendant/respondent. (7) In view of the above mentioned, I see no merit in this appeal which is accordingly dismissed with a direction that the sale consideration of Rs.80,000 less already paid, shall be paid by or before 4-4-2003 failing which the suit shall stand dismissed. The parties are, however, left to bear their own costs. "

3. Learned counsel for the petitioner has contended that the most important questions relating to the limitation for filing the suit for pre-emption, under section 30 of Punjab Pre-emption Act, 1913 and payment of interest on unpaid sale price under section 27 of the said Act, involved in the case requiring consideration were not properly attended and appreciated either by the First Appellate Court or by the High Court in second appeal. The first contention of the learned counsel precisely is that the suit for the purpose of limitation would be governed by the provisions of section 30 of Punjab Pre-emption Act, 1913 as the petitioner before the sale through the Court, entered into an agreement to sell with the vendor, therefore, the limitation for the purpose of filing the suit would start from the date of agreement to sell on the basis of which decree for the sale of land, was passed and not from the date of decree. The learned counsel contended that even if the limitation is counted from the date of decree, the suit was still time-barred. The question of limitation was dealt with by the First Appellate Court as under:-- "I have heard the learned counsel for the parties and also gone through the record. The learned counsel for the appellant has argued on the issue of limitation and also with regard to the sale price and has not argued on the other issues. According to him the period of limitation would be one year from the date of sale. It is an admitted position between the parties that this sale did not take place through any mutation nor through any registered sale-deed but it took place through a decree of a Court. Therefore, neither section 30 of the Pre-emption Act would be applicable nor Article 10 of the Limitation Act would apply because there is no registered sale-deed. In this eventuality, it is Article 120 of the Limitation Act would after and a period of limitation would be six years (sic). Such a view has been held in 1974 SCMR 425 where the sale had not taken place through registered sale-deed or mutation. Under these circumstances, the suit would be taken as within limitation and the findings of the learned trial Court on this issue are hereby upheld."

4. In second appeal, the petitioner did not contest the question of limitation and confined himself to the extent of defending the sale consideration, fixed by the First Appellate Court. The petitioner having waived the question of limitation in second appeal before the High Court would not be permitted to reopen the same before this Court in the present petition.

5. The next question relating to the payment of interest on unpaid sale price under section 27 of the Punjab Pre-emption Act, 1913 is a mixed question of law and fact which was also not raised either in First Appellate Court or in the second appeal before the High Court and a question which was not raised before the High Court would not be allowed to raise before this Court. The petitioner at no stage set up a claim for enhancement of sale price on the basis of market value of the land other than the price given in the decree passed in his favour on the basis of agreement to sell, therefore, the First Appellate Court fixed sale price mentioned in the decree, without determining the market value in terms of section 27 of the Punjab Pre-emption Act, 1913. The price claimed by the petitioner was as such fixed by the. First Appellate Court, therefore, section 27 (ibid) would not be relevant in the present case.

6. For the foregoing reasons, we having found no substance in this petition, dismiss the same. Leave is refused. M.H./G-27/S Petition dismissed.