1989 PLP 162 (MLD)

Muhammad Aslam Nagi for Petitioner. Abdur Razzaq for Respondents. Date of hearing: 4th February, 1989. The facts necessary for the disposal of this revision petition are that the suit for possession through pre‑emption on the grounds of ownership in the estate and ownership of the adjoining land, filed by the petitioner was dismissed by the learned trial Court vide judgment and decree dated 5‑4‑1982. The sale was effected vide sale‑deed dated 23‑2‑1973 and in the written statement besides other matters, the question that the land in question stood exempted from pre -emption was also raised. The learned trial Court decided the issue pertaining to superior right of pre‑emption in favour of the plaintiff/petitioner but the issue pertaining to court‑fee was decided against the pre‑emptor/petitioner. The suit was thus dismissed observing that the plaintiff had not made up the deficiency in the court‑fee in time as directed by the Court. It may be noted that the Notification No. 196‑R dated 28‑2‑1944 issued under Section 8 of the Punjab Pre- emption Act, 1913 exempting the land mentioned therein, was observed to be of no effect as the same stood rescinded vide Notification No. 662‑73/447‑LR‑III, dated 2‑3‑1973. The pre-emptor/petitioner challenged the judgment and decree of the learned trial Court by filing an appeal which was also dismissed vide judgment and decree dated 18‑10‑1987. The learned appellate Court reversed the findings of the trial Court on issue No. 1 pertaining to court‑fee and issue No. 1 pertaining to pre‑emptibility of the land in question. The court‑fee paid was held to be sufficient but the suit was not decreed as the learned appellate Court was of the view that in view of the Notification dated 28‑2‑1944, though rescinded by later Notification dated 2‑3‑1973, the land in question was not pre‑emptible at the time of the impugned sale on 23‑2‑1973. This led to the filing of the present revision petition.

2. Learned counsel for the petitioner contended that the learned appellate Court should have decreed the suit as it had held that the court‑fee affixed on the plaint was sufficient and in accordance with law and as it had no power or jurisdiction to reverse the finding on issue No. 5 as the cross‑objections had not been filed by the respondents/vendees; that in any case the Notification dated 28 2‑1944 did not apply as the land, subject‑matter of the suit does not fall within the land exempted by the said Notification; and that the petitioner/pre‑emptor is entitled to have the suit decreed as the trial Court had dismissed the suit illegally on a ground not available in law.

3. Having heard the learned counsel for the parties, I am of the view that there is no merit in either of the submissions' of the learned counsel for the petitioner. Muhammad Din petitioner in the suit filed by him alongwith Muhammad Shat now represented by legal representatives (respondents Nos. 4 and 5) has remained unsuccessful till date for one reason or the other. Obviously, no decree: can now be passed in favour of the petitioner on the ground of ownership in the estate. In support of this view, reliance may be placed on Sardar Ali etc. v. Muhammad Ali etc. PLD 1988 SC 287, Ghulam Qadir v. Nawab Din PLD 1988 SC 701 and Aiwaz Khan and another v. Allah Bakhsh 1998 SCMR 1799.

4. The other plea that the respondents/vendees could not have supported the decree of dismissal of suit without filing cross‑objections is without merit. The very precedents cited by the learned counsel for the petitioner go against the contentions raised. The observations of Hamoodur Rahman, C. J. m the case of Khairati and others v. Aleem‑ud Din and another PLD 1973 SC 295 are instructive and are reproduced as under:‑ "It is no doubt true that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross‑objection." The respondents in this case by seeking reversal of the finding on issue No. 5, were not attacking the decree but were in fact seeking upholding of the decree of dismissal of suit. The observations made in Messrs Yousuf & Co. v. Mst. Rasheeda Begum PLD 1975 Kar. 684 by Agha Ali Hyder, J. may also be referred to in this respect. 4‑A. The last contention that the land subject‑matter of the suit does not fall within the Lind exempted by the notification dated 28‑2‑1944 cannot be allowed to be raised for the first time while arguing the revision petition. The question was neither raised in the memorandum of revision petition nor the said plea appears to have been raised before the first appellate Court or even before the trial Court. 'This Court as such is not expected to go into this question for the first time at this late stage.

5. For the reasons given above, there is no merit in the revision petition ands the same is hereby dismissed. The parties are left to bear their own costs. M.Y.H./M‑1124/L Petition dismissed.