1979 PLP 533 (CLC)

Ibis second appeal is directed against the judgment and decree dated 3-2-1970 passed by the learned District Judge, Bahawalpur. Facts necessary for the purposes of this appeal briefly stated are that the appellants-defendants (vendees) purchased land measuring ?8 kanals situated in village Wahl Hussain, Tehsil and District Bahawalpur for Rs. 7,000 vide Mutation No. 605 dated 22-6-1966 from Ghulam Rasool son of Gahia. respondent No. 2 herein. Glrulam Rasool, respondent No.l plaintiff filed a suit for pre empting the aforementioned sale. He claimed his superior right of pre-emption as an owner iii the estate which status the vendees did not enjoy. fie, however, did nut dispute the sale price. The appellant--defendants filed written statement and inter alia pleaded that the suit was barred by rune, that the plaintiff had waived his fight that the appellants-defendants have improved their status and that the sale was not pre-emptible as it related to evacuee property. On the pleadings of tire parties following issues were framed in the suit :- (I) Has the plaintiff right of pre-emption superior to that of the vendees defendants ? (2) Is the transaction in suit not pre-emptible ? (3) If so, has the plaintiff waived it by word or conduct `? (4) Is the suit barred by time ? A (5) Has this Court no jurisdiction to hear this suit 7 (6) Relief.

3. The trial Court found Issues Nos, 1 and 2 in fag-our of the plaintiff. whilst Issue No. 3 was found against the appellants-defendants. Under Issues Nos. 4 and 5 the suit was held to have been filed within time and that the Court has jurisdiction to try the suit. As a result of the findings recorded by the trial Court as. mentioned above on the issues which arose, it decreed the suit by judgment dated 24-2-1968 subject to the plaintiff pre-emptor depositing the pre-emption money before 29-4-198 failing which the suit was to stand dismissed with costs. Aggrieved by this decree the appellants preferred an appeal before the District Judge, Bahawalpur. This appeal was dismissed by the learned District Judge on 3-2-1970. Hence this second appeal.

4. It may be pertinently mentioned here that although' in the ground's of appeal before the first Appellate Court, findings on all the five issues had been challenged, at the time of hearing arguments were advanced on behalf of the appellants only in respect of the findings on Issues Nos. 4 and 5 and no other point was urged before, the said Court

5. This appeal was admitted on 20-2-1970 and the main point then raised was that the land in dispute was still a part of the compensation pool and as such 'not pre-emptible. The admitting note also shows that the only point for consideration of which this appeal was admitted, was one urged at the time of admission.

6. Before dealing with the appeal I would like to dispose of an application filed by the appellants for permission to lead additional evidence. This application 'is C. M. No. 369-74/BWP, and was filed on 4-9-1974. It was directed by order dated 9-10-1974 that this application shall be heard along with the main appeal. The application was opposed by the learned counsel for the contesting respondent on the grounds that the alleged improvement of status came into being through mutation allegedly sanctioned on 21-7-1967, yet this document was not filed in the trial Court by the appellants along with their written statement which was submitted to the Court on 22-7-1967 ; they did not even file this document when they filed the amended written statement on 22-11-1967, although this plea was raised by them in the written statement as preliminary objection No. 3 ; this plea was specifically denied in the replication, yet the appellants neither cared to file this document before the trial Court nor claimed an issue in 'respect thereof.

7. The further submitted that one of the appellants namely Waris Ali appeared as his own witness, but he did not even verbally assert the position that they have improved their status. In the context of the above submissions the learned counsel for the respondents argued that at this late stage, the evidence should not he allowed to be produced.

8. I find force in the contentions raised by the learned counsel for the contesting respondent. Another important aspect that has weighed with me to disallow this application is that during the trial of the suit which ended on 22-2-1968, no application for additional evidence was mace and similarly during the period the appeal remained pending with the first appellate Court for about 2 years, no such application was made. The appeal was admitted by this Court on 20-2-1970, but the application for additional evidence here also was made almost four years subsequent to the filing of the appeal Apart from the above position the document sought to be produced as additional evidence was in the knowledge of the appellants and in any case could be procured by them conveniently during the early stages in the suit. The certificate on the document in question also shows that this document was obtained on 28-11-1973 and despite that the application was moved in this Court one year after obtaining the document. The, allowing of additional evidence at this stage in the attendant circumstances of the case would amount to giving premium on the negligence of the appellants. There cannot bet any dispute to the well settled proposition that the Courts do not help the indolent.

9. Even otherwise the additional evidence sought to be produced will not advance the case of appellants as on their own showing the alleged improvement of status came into being through mutation of gift said to have( been sanctioned on 21-7-1967 when the suit bad already been, filed only 20-6-1967. Such an improvement is of no avail to a vendee in, view of the provisions of section 21-A of Punjab Pre-emption Act, 1913 which reads' as under :- . "21-A. Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor. plaintiff in such suit." I, therefore, reject this application.

10. Learned counsel for the appellants conceded that the plea on which this appeal was admitted is no longer available as the controversy regarding pre-emptibility of the sales of land which had been settled permanently under the Displaced Persons (Land Settlement) Act, as was a the land in dispute and about the jurisdiction of the civil Court to entertain a suit for pre-emption in regard thereto, has been finally settled by they well-known pronouncement of their Lordships of the Supreme Court in Haji Sultan Muhammad and another v. Muhammad siddique (P L D 1973 S C 347). 11: The learned counsel for the appellants, then objected to the findings of the Courts below on issue No. 3 which relates to the alleged waiver of the right by respondent No. 1 plaintiff in respect of the transaction of sale in dispute. He invited my attention to the statements of the defence witnesses Khuda Bakhsh and Muhammad Hayat to contend that the 'plaintiff was present at the time of finalisation of the transaction of sale ants had shown his disinclination to purchase the land in dispute. He further submitted that the trial Court was wrong in observing that Yaqub P. W. 1 had no authority to sell the land in dispute.

12. The learned counsel for the respondents on the other hand contended that the appellants cannot be permitted to urge on a point in second appeal when they had not raised objection in respect thereto before the first appellate Court. He elaborated his contention by submitting that a perusal of the judgment of the first Appellate Court clearly shows that no arguments were advanced on behalf of the appellants on issue No,

3. They had contested primarily the issue of jurisdiction and half-heartedly the issue of limitation. The finding of the trial Court on issue No. 1 had been affirmed by the first Appellate Court on the ground not only that it stands proved by the evidence on record, but also for the reason that no argument was addressed before it challenging the finding of the trial Court thereon. Similarly he pointed out that the findings of the learned trial Court on issue No. 3, on the point of waiver was not challenged as the first Appellate Court has clearly stated that no other point was urged excepting those which had been taken notice of in para. 3 of the judgment.

13. The learned counsel for respondents also contended that waiver as pleaded and attempted to be brought out by the evidence cannot be given effect to otherwise also, as in view of sections 19 and 20 of the Pre-emption Act, the waiver can only be if the refusal to purchase is made by the pre emptor in proceedings under the said sections. According to him waiver of other types is by way of estoppel by conduct under section 115 of the Evidence Act which is a question of fact and cannot be allowed to be agitated in a second appeal especially when the findings thereon are concurrent by both the Courts below. He also submitted that there is neither any affidavit from the appellants nor from the learned counsel for the appellants who appeared before the first Appellate Court, deposing that any other point than those dealt with by the said Court were raised at the time of arguments. He also pointed out that not only that, there is no ground taken in the present appeal even in this respect.

14. Elaborating his contention that waiver is the context of a suit 110i has got to be shown as an intentional relinquishment of a known right, he submitted that the right of pre-emption comes into play only when sale has been effected. There is nothing to show on the record that there was an intentional relinquishment of the right by respondent No. 1 in respect of the transaction of sale in dispute. He, on the point of waiver referred to Mustaqlm v. Sher Bahadur (P L D 1962 Pesh.14), Baqri and 4 others v. Salehoon and 3 others (P L D 1972 S C 133), as also Alam Sher Khan v. Allah Din (A, I R 1939 Lab. 517). 15. 1 find force in the contentions raised by the learned counsel for the respondents. 1 am of the considered view that in the attendant circum stances of the case in hand, a plea which has not been raised before the Courts below cannot be permitted to be raised in a second appeal especially when it touches a question of fact. The plea of waiver as put to trial under issue No. 3 in the case in hand is essentially relatable to factual position,1 The first Appellate Court's judgment specifically points out that no arguments were addressed on this issue at the time of hearing. It has been rightly pointed out by the learned counsel for the respondents that no affidavit even has been filed to show that any plea in this regard was raised before the first Appellate Court and was not dealt with. It may further be observed that in the grounds of appeal filed in this Court also there is no such plea taken. The view that I have taken above, that a party which has not raised any objection to the finding of the trial Court before the first Appellate Court on a question of fact, cannot be allowed to raise the same in second appeal finds support from the case of Faiz Ahmad v. Ghulam Muhammad and another (1972 S C M R 220).

16. Apart altogether from the above position that the objection in regard to the findings of the Courts below on issue No. 3 cannot be permitted to be raised at this stage, I also find that the plea otherwise also is devoid of merit. I have gone through the evidence and find that the two witnesses produced by the appellants on this point, namely Khuda Bakhsh, D. W. 1 and Muhammad Hayat, D. W. 2 materially contradicted each other. Examination of the evidence also shows that Yaqub P. W. I appearing in rebuttal to the evidence of defendants categorically stated that Ghulam Rasul respondent No. 1 was not offered the land for purchase and that at the time of entering into the agreement of sale with the appellants, he was not present. He also categorically stated that one month after the agreement of sale with the appellants, the contesting respondent was present at the time of attestation of mutation and objected to the sale and wanted to buy the land, but he had said that since the agreement had been entered into his offer to purchase could not be considered. Again in cross-examination he affirmed the above position while stating that once he had mentioned to the respondent-plaintiff that he wanted to sell the land and if he wanted to buy, he may make arrangement for the money, whereupon the plaintiff had stated that he would make arrangement. The plaintiff appearing as P. W. 4 also stated that he did not participate in the transaction of sale in dispute and that he also did not refuse to buy the same.

17. The submission made by the learned counsel for the appellants that the observation in the trial Court judgment about Muhammad Yaqub having no authority to sell the land in dispute was wrong, is also baseless. A perusal of the judgment clearly shows that the trial Judge did not observe that Muhammad Yaqub had no authority to sell the land, but what he pointed out was that it was Khuda Bakhsh, D. W. who asked the respondent plaintiff to purchase the land, and that Khuda Bakhsh had no authority whatsoever to offer the land to the respondent-plaintiff on behalf of the vendee to which position no objection had been or could be raised by the appellants.

18. The above appraisal of the evidence squarely establishes that the findings of the Courts below on Issue No. 3 were unexceptionable on factual plane as well.

19. The learned counsel also feebly urged against the findings of the Courts below on the point of limitation as put to trial under issue No.

4. He submitted that possession of the land in dispute had been delivered to the appellants four months before the sanction of mutation and as such the suit filed on 20-6-1967 was instituted beyond limitation.

20. Article 10 of the Limitation Act governs the period of limitation of a suit for pre-emption. The said Article is reproduced hereunder for facility of reference :- "

10. To enforce a right of (one year) ... When the purchaser takes, pre-emption whether under the sale sought to the right is founded on by impeached, physical law, or general usage, possession of the whole of or on special contract. the property sold, or, where the subject of the sale does not admit of physical possession, when registered. of sale is The phrase "physical possession" as used in Article 10 of the Limitation Act or section 30 of the Punjab Pre-emption Act has been apparently used in the context of giving a notice to all persons concerned about the delivery of possession i.e. that the former owner had parted with the property in favour of some other person. An admission, therefore, by the vendor at the time of making a report to the Patwarl or in a statement before the Revenue Officer that the possession had been surrendered earlier may be of some use between the parties to the transaction only but cannot be extended to bind a stranger a pre-emptor. In a pre-emption suit to raise a plea of the suit being hit by limitation, it has got to be proved by affirmative evidence and established beyond any shadow of doubt that actual physical., possession had been delivered to and taken over by the vendee under the sale, before the sale was formally given effect to.

21. Now adverting to the case in hand there is no evidence to show that the actual physical possession had been delivered to the appellants four months prior to the sanctioning of the mutation. The evidence of D. W. 1 and Wayis Ali, appellant appearing as D. W. 3 is to the effect that five or seven days after the agreement the possession was delivered. It is not stated by anyone that the agreement had taken place four months before the sanctioning of mutation. l n ground 5 of the Memo of Appeal filed in this Court the appellants have stated that they obtained possession on 4-6-1966. The mutation was admittedly sanctioned on 22-6-1966. On their own admission, therefore, the plea raised on behalf of the appellants about having taken possession of the land in dispute four months prior to the sanctioning of mutation is incorrect. The examination of the mutation (Exh. P/6) clearly shows that it was entered on 20-6-1966 and was sanctioned on 22-6-1966. The recital in the mutation aforementioned does not even indicate that the actual physical possession had been delivered earlier. The suit having been filed on 20-6-1967 cannot be said to have been filed out of time. The contention is repelled. In view of the foregoing discussion this appeal cannot succeed and it is accordingly dismissed. There shall, however, be no order as to costs. Appeal dismissed.