1994 PLP 1449 (SCMR)

SAAD SAOOD JAN, J.‑‑‑These are five appeals preferred by special leave of this Court from the judgment of the High Court whereby the revision petitions preferred by the appellants were dismissed. These appeals arise in the following circumstances:

2. One Ghilam Hussain owned agricultural land in Chak No. 232/RB, Tehsil Faisalabad By a registered deed dated 28‑7‑1979 he sold two Kanals and 2 "arias of lis land to Muhammad Saeed, appellant. Similarly by another registered deed le sold 5 Kanals and 5 Marlas of his. land to Muhammad Jamil, appellant. It may be mentioned that both the appellants are real brothers. The two sales gave rise to a number of pre‑emption suits. One set of suits was filed by Muhammad Ifran, minor son of Ghulam Hussain and the other set was brought by Ghulam Mustafa, brother of Ghulam Hussain. Both pre‑emptors based their claim to superior right on the assertion of relationship with then vendor. The trial Court held that as son of the vendor Muhammad Irfan had the nest superior right of all to acquire the land. Accordingly, it decreed the suit o Muhammad Irfan but dismissed those preferred by Ghulam Mustafar. From the judgment of the learned trial Court the appellants as well as Ghulam Mustah preferred appeals in the District Court. A learned Additional District Judge at Faisalabad dismissed the appeals of the appellants. It accepted the appeals preferred by Ghulam Mustafa in that it modified the decree passed by the trial Court by living a second right of pre‑emption to him. From the judgment of the learned Additional District Judge the appellants filed revision petitions in the High Court but these were dismissed. They have now come in appeal to this Court. The only contention raised in support of these appeals is that the suits brought by Muhammad Irfan were Benami and were intended entirely for the benefit of his father. It is to be noticed that although this plea was taken by the appellants in the written statements but it does not appear to have been pressed when the issues were being settled. This will appear from the fact that the trial Court did not frame any issue incorporating this plea. It may also be mentioned that even in the grounds of appeal before the Additional District Judge the appellants did not make any grievance of the fact that the trial Court had not framed an issue on the plea of Benami advanced by them in the written statement.

4. It was contended on behalf of the appellants that there was some evidence on the record touching the said plea. This is indeed true but in absence of any issue in this regard the said plea was never put to trial. In the circumstances, the mere fact that certain stray statements with regard to the said plea have been allowed to be brought on the record can hardly be sufficient to record a finding on the said plea. After failing to press the said plea at the trial they cannot now be permitted to resuscitate the same merely on the ground that there is some evidence on the record relating to it. We are therefore not prepared to examine this plea. These appeals are without any merit and are hereby dismissed. There will be no order as to costs. AA./M‑1967/S??????????????????????????????????????????????????????????????????????? Appeals dismissed.