P L D 1952 Peshawar 19 (PLP)

MUHAMMAD SHAFI, J.‑On the 8th of March 1947, by a deed which was registered on the 11th of the same month, one Vaishno Dass, sold a house situated in Tangl Barazal, to Mst. Benazira, daughter of Ghulam Mohayud Din in lieu of Rs. 1,

400. It was mentioned in the deed that Rs. 450 had already been paid to the vendor, Rs. 50 were given to him the same day when the document was executed, for the purchase of the stamp‑paper etc., and Rs. 900 would be paid in presence of the Sub‑Registrar. The latter amount was in fact paid as stated in the deed. On the 8th of March, 1948, Mir Alain Khan instituted a suit against Mst. Benazira, Vaishno Dass and Umar Gul for the possession of the house in dispute. Initially he claimed that the house belonged to him, and that Vaishno Dass was only a tenant in it, and was, therefore, not entitled to sell the house to Mst. Benazira. Alternatively, he claimed that if the Court found that the house belonged to Vaishno Dass, then he might be granted the decree prayed for in the exercise of his right of pre‑emption on payment of Rs. 300, or any other amount that the Court found to be the correct price. He claimed this right on account of the fact that he was an owner in the Mahal and Kandi, where the suit‑house was situated, and also because he owned agricultural land in the village, the qualifications which the defendant No. 1 Mst. Benazira, was not possessed of. Mst. Benazira in her written statement denied the plaintiff's claim in toto. She asserted that the house belonged to Vaishno Dass, who had validly by a sale deed dated 11th March 1947, (which is the date of the registration of the deed and not of its execution) sold it in her favour. She met the plaintiff's conten tion, that he was entitled to get the decree for possession by pre‑emption of the house in suit, on the ground that Mst. Benazira was herself an owner in the Kandi and Tal in which the house in dispute was situated, and that she was a relation of Mir Alam.Khan, and owned a house adjacent to that in dispute. The following issues were framed in the cases :‑

1. Was defendant No. 2 Vaishno Dass a tenant under plaintiff ?

2. If issue No. 1' is proved in the affirmative, then was defendant No. 2 owner of the superstructure ?

3. Was defendant No. 2 a non‑ejectible tenant‑?

4. If issues Nos. 1 and 2 are proved in the affirmative and No. S in the negative, then in case of a decree is defendant No. 1 entitled to remove the Abadi and claim its value ?

5. What is the value of the Abadi ?

6. If issue No. 3 is proved in the affirmative, then is defendant No. 1 also not liable to ejectment ?

7. Is the sale liable to cancellation ?

8. Is the sale not pre‑emptible ?

9. If issue No. 8 is negatived, then has plaintiff superior right of pre‑emption ?

10. Was the sum of Rs. 1,400 fixed in good faith or paid ?

11. What is the market value ? The learned trial judge decided issues Nos. 1 to 7 against the plaintiff. On the rest of the issues he held that the plaintiff had a right to pre‑empt the sale in question, and was entitled to have the property in preference to defendant No. 1 Mst. Benazira. As regards the price he disbelieved the contention that Rs. 450 had been paid prior to the execution of the deed, but he held that Rs. 950 were fixed in good faith and paid. He consequently granted plaintiff a decree for possession of the house in suit on payment of Rs.

950. Out of this amount the plaintiff had already deposited Rs. 900, and the balance he was ordered to pay on or before the 15th of June, 1950, failing which his suit was to be considered dismissed. He ordered the parties to bear their own costs. Mir Alam Khan plaintiff accepted the findings of the learned trial Court on issues Nos. 1 to 7. by not going up on appeal against the judgment of the Sub‑Judge on those issues. Mst. Benazira alone went up on appeal, and she stated in her grounds of appeal that the learned trial Court was wrong in granting a decree for possession by pre‑emption in favour of the plaintiff in view of the fact that the plaintiff had not proved that at the time of the sale he was an owner in the Kandi in which the property in suit was situated. It appears that some person claiming to be an Assistant Custodian, Charsadda appeared before the Additional judge and raised an objection that the sale in dispute was against the provisions of the Pakistan (Administration of Evacuee Pro perty) Ordinance XV of 1949, and the suit was, therefore, on account of that reason liable to dismissal. The learned Additional judge accepted this objection, and held that Vaishno Das was an evacuee within the meaning of section 2 (2) of the said Ordinance, and that as he had trans ferred the property in favour of Mst. Benazira after 1st March 1947, the sale was ineffective .under section 16 of the Ordi nance, and the suit for pre‑emption was, therefore, not compe tent. He. however, held that the jurisdiction of the Civil Courts to adjudicate upon the point involved in the case was barred under section 34 of the above Ordinance. He took notice of sections 16 and 18 of the Ordinance wherein it is laid down that the transfer of any right or interest in any property made by an evacuee after 1st March 1947, can become effective if it is confirmed by the Custodian. Having found that the Civil Courts had no jurisdiction, he accepted the appeal, set aside the judgment and decree of the learned trial Court, and dis missed the suit. He, however, ordered the parties to bear their own costs. Mir Alam Khan has come up on ‑revision to this Court. The learned lower appellate Court by going into the ques tion whether the sale was void, and ineffective or not, has completely ignored the law of pleadings given in Orders 6, 7 and 8 Civil P. C. Under O. 6, which deals with the pleadings generally it is laid down in Rule 2, that every pleading shall contain and contain only a statement in a concise form of the material facts, which the party pleading relies for his claim or defence, as the case may be. Under Rule 7 of the same Order no pleading shall except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. The party, however, has got a right to apply to the Court at any stage of the proceeding to allow him to alter or amend his pleadings. Order 8, rule 2 inter alia provides that the defendant must raise by his pleadings all matters which show the suit not to be maintainable or that the transaction is either void or voidable in point of law. Under rule 5 of the latter order every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability. Order 14, then deals with the settlement of issues and determination of suit on issues of law or on issues agreed upon. Under its Rule 1, issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which .a plaintiff must allege in order to show a right to sue, or a defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by the other party forms the subject of a distinct issue. The further trial of the suit pro ceeds on the issues framed by the Court. If on the first hearing it appears to the Court that the parties are not at issue on any question of law or fact, the Court has a right to pronounce the judgment at once. It is only where the parties are at issue on some question of law or of fact that they are permitted to adduce evidence, and the Court is called upon to give its find ings on those issues. From this it follows that if the parties are agreed with regard to a certain transaction that it has taken place and is valid in law, the Court cannot go into that question and hold otherwise, because on that particular point the parties are not at variance. In this case the plaintiff alleged that a valid sale had taken place in favour of Mst. Benazira defend ant. The latter not only not denied this fact, but admitted it to be correct. On this point therefore, the parties, were not at variance and consequently not at issue. The learn ed lower appellate Court was therefore not competent to go into the question of the validity of the sale at all. For a sale to be ineffective under' the Ordinance there are several facts which have got to be proved, and one of them is that the person transferring the property was an " evacuee " within the meaning of that word ‑in the Ordinance. This fact has got to be alleged and proved just like any other fact in a case. The learned lower‑appellate Court was not right in holding that Vaishno Dass was an evacuee simply because his address given in the plaint was that of India. Mere residence in any place in the territories now comprising India, does not make a person evacuee until and unless it is also proved, that by reason of that fact the person is unable to occupy, supervise or manage in person his property in Pakistan. I am consequently of the opinion that the learned lower appellate Court was not justified in holding the transaction in dispute ineffective by reason of the fact that it. violated certain provisions of a certain Ordinance. I, therefore, accept this revision petition, set aside the judgment and decree of the learned lower appellate Court, and remand the case back to the District judge, for determination of the appeal according to law. There will be no order as to costs in this Court. Orders announced. A. H. Revision accepted.