1984 PLP 113 (CLC)

‑‑O. XLI, r. 33 & S. 100‑‑Punjab Pre‑emption Act (I of 1913), S. 4 First Appellate Court after pronouncing judgment by which he remanded case to trial Court to give finding on additional issue about market value of land in dispute recording another judgment about market value of land on strength of statement of appellant and decreeing suit in favour of respondent‑.‑Judgment of First Appellate Court set aside to extent of fixation of market value and case remanded to trial Court for compliance of direction contained in remand order passed previously by First Appellate Court‑Held, after announcing judgment, it was not open to first appellate Court to record second finding. A suit for possession through pre‑emption filed by the respondent was decreed in his favour by the learned trial Court by its judgment and decree dated 4‑101976, subject to payment of Rs. 2,000 as sale consideration of the suit land. The plea raised by the appellant that the transaction in dispute was hibba and not a sale, was not accepted by the learned trial Court. The decretal amount of Rs. 2,000 was fixed under issue No. 3 which was formulated to reflect the controversy as to whether the sum of Rs. 2,000 was actually paid as sale consideration.

2. The learned First Appellate Court affirmed the findings that the transaction was a sale and the respondent possessed superior right of pre emption. However, on issue No. 3 it was of the view that the fixation of the sale price of Rs. 2,000 could not be supported by the material on the file. The learned District Judge, who was seized of the appeal, further maintained that the trial Court was required to frame another issue regard ing market value of the disputed land in case issue No. 3 was not proved. He, accordingly, framed the following additional issue "what was the market value of the disputed land at the time of the disputed transaction ?" and remanded the case to the learned trial Court with the direction to‑ send back the file to him after giving it,; finding on the additional issue in the light of the evidence which the parties may choose to produce. It appears that after the announcement of the judgment, the learned District Judge enquired from the appellant as to what was the market value of the land. As per averment made in his judgment, the appellant stated that it was not less than Rs. 7,

000. The respondent having accepted this price, the learned District Judge recorded another order directing the respondent to deposit Rs. 7,000 as purchase money and modified the decree of the learned trial Court to that extent. The earlier order remanding the case to the learned trial Court, thus stood recalled. The vendee‑appellant has now come up in second appeal.

3. The learned counsel for the appellant submitted that after passing the judgment, remanding the case to the learned trial Court, the learned District Judge had become functus officio and could not make another judgment decreeing the suit in favour of the respondent, subject to pay ment of Rs. 7,

000. It was forcefully contended that no power vested in the learned First Appellate Court to recall its previous order.

4. The respondent's learned Counsel frankly conceded and did so rightly, that he was unable to defend the judgment and decree of the learned first appellate Court. It is quite clear that after announcing the judgment it was not open to the learned District Judge to record findings on the strength of the alleged statement of the appellant and decree the suit in favour of the respondent on the basis thereof.

5. In this view of the matter, this appeal is accepted, the judgment and decree of the learned First Appellate Court are altered to the extent of fixation of the market value of the land at Rs. 7,

000. The file is remitted so the learned trial Court, who shall record the findings on the additional issue formulated by the learned District Judge, and transmit the file to him in compliance with the direction contained in the remand order, dated 23‑7‑1977. The learned trial Court shall proceed in the matter expedi tiously. The parties are left to bear their own costs. The record of the learned lower Courts shall be sent back to them immediately. M. Y. H. Appeal accepted.