1995 PLP 699 (MLD)

(1) Whether the report of the local Commissioner is liable to be set aside in the light of objection submitted by the defendants? OPD (2) What should be market value of the land in dispute? (3) Relief.

5. After considering the objections with regard to the report of the Local Commissioner and after detailed arguments the learned trial Court vide its judgment dated 6‑1‑1979 ‑ decreed the suit and held that the Local Commissioner had "rightly determined the market value of the disputed land at Rs.6,500 per acre". This judgment was appealed against by respondents Nos.l to 4 and the learned Additional District Judge vide his judgment dated 15‑4‑1994 accepted the appeal holding that Adhlapi transaction is not a sale and not pre‑emptible.

6. The learned counsel for the petitioners has mainly urged two points which are as follows:‑‑‑ (i) That since the learned appellate Court vide its judgment dated 5‑3‑1978 had remanded the case on issue No.7 i.e. the market price and the said judgment of the learned appellate Court was not challenged before any forum, the same had attained finality and the learned trial Court had rightly confined itself to the aforementioned issue. The judgment of the learned Additional District Judge, dated 15‑4‑1982 is not tenable in law as he could not have re‑opened the issues which stood settled in view of the aforementioned judgment which had attained finality. He referred to PLD 1970 SC 63 in support of his plea. (ii) That even otherwise the impugned transaction is in fact a sale and is pre‑emptible like any other transaction of sale. There was enough evidence to show that it was sale and was disguised as `Adhlapi' transaction to avoid suit for pre‑emption.

7. The learned counsel for the respondents/defendants has defended the impugned judgment and has made following submissions in this behalf:‑‑‑ (i) That the appeal of the respondents/defendants had been accepted by judgment dated 5‑3‑1978 passed by the learned Additional District Judge, Rahimyar Khan and the case has been remanded for a fresh decision and all issues had been re‑opened to be decided on merits. (ii) That Adhlapi transaction is not a sale within the meaning of section 4 of the Punjab Pre‑emption Act, 1913 as the right of pre‑emption stipulated in the aforementioned section "arises only in case of sale". (iii) That as the mutation of Adhlapi is not a sale within the meaning of section 4 of the Transfer of Property Act, the same could not have been pre‑empted. Reliance is placed on PLD 1952 Lah. 166(175) to contend that the sale is to be for consideration of money and anything paid other than money in consideration would not constitute a transaction of sale.

8. I have heard the learned counsel for the parties and have also gone through the precedent case‑law.

9. On appeal filed by respondents Nos.l to 4, the learned Additional District Judge, Rahimyar Khan remanded, the case vide his order, dated 5‑3‑1978. A bare reading of this order would show that the appeal was accepted it? terms of the offer made by the respondents in that appeal (they are petitioners in this civil revision) and the acceptance of the offer by the appellants in that appeal (they are respondents in this civil revision). The relevant portion of the said order reads as under:‑‑‑ "The plaintiffs have made a statement today that they are prepared to pay the present market price of the suit land. The counsel for the parties have made a statement that if Mr. Muhammad Anwar Muneer Hussain, Advocate is appointed as a commission for the determination of the present market value of the suit land they would have no objection. In view of the statement of the plaintiffs that they are prepared to pay the present market price of the suit land, the appeal is accepted and the judgment and decree under appeal are set aside. The case is remanded for fresh decision. Mr. Muhammad Anwar Muneer Hussain, Advocate Rahimyar Khan is appointed as a commission to determine the present market price of the suit land. Both the parties would pay Rs.200 to him as his fee. It would be borne by them in equal share. The learned trial Court would issue notice to the commission. After the commission submits his report, the learned trial Court would invite objections to the same. The parties would be allowed to produce the evidence to substantiate their objections and then the learned trial Court would determine the market price of the disputed land. The parties are directed to appear before the trial Court on 12‑3‑1978," In terms of the aforementioned order, the commission submitted its report and issues were framed which find mention in para. 2 above.

10. A perusal of the judgment dated 5‑3‑1978 would show that the respondents, on whose appeal this judgment was passed, did not address arguments on other issues which were decided against them by the learned trial Court. They readily accepted the offer made by the petitioners‑plaintiffs that they were prepared to pay the current market price of the suit land. The learned trial Court seized of the matter on remand, rightly confined itself to the limited question (on which the case had been remanded) and decreed the suit vide its judgment dated 6‑1‑1979. This judgment and decree were, however, set aside by the learned appellate Court vide the impugned judgment dated 15‑4‑1982 who notwithstanding the judgment dated 5‑3‑1978 re‑opened all the issues and accepted the appeal holding that Adhlapi was not sale and thus not pre‑emptible.

11. The learned appellate Court did not appreciate that in the earlier round of litigation, the respondents did not agitate any other point. By implication they relinquished other issues and accepted the offer of the petitioners‑plaintiffs qua Issue No.7 by conceding that they were prepared to pay the current market price. The case was remanded to the trial Court on this point alone. No other issue was either agitated or argued before the learned appellate Court. The judgment/order of remand dated 5‑3‑1978 was not challenged before the higher forum and the same attained finality. That being so, the respondents were estopped in law to re‑agitate the other issues Section 105(2) of the Civil Procedure Code reads as under:‑‑‑ "Notwithstanding anything contained in subsection (1) where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."

12. The acceptance of the offer made by the petitioners‑plaintiffs for payment of the current market price; the appointment of commission to determine the said price and the payment of equal fee to the said Local Commissioner by the respondents leave no doubt about the intention of the respondents (who were appellants in the said appeal) that the judgment/order of remand was confined only to the question of determination of the sale price. If the respondents wanted to agitate and argue other issues like Adhlapi transaction not being a sale or that the petitioners‑plaintiffs had no superior right of pre‑emption and whether the learned Civil Court had jurisdiction to try the said suit, there was nothing to stop them from doing so. As a matter of fact, the question of acceptance of the offer made for the payment of current market price of the pre‑empted land had only arisen as the respondents had waived to argue the other issues on merits.

13. I am afraid the re‑agitation of the issues which were not argued before the learned trial Court was an afterthought and the same could not have been legally permitted to be resurrected and the learned appellate Court fell in error in passing the impugned judgment dated 15‑4‑1982. In PLD 1970 SC 63 it was held:‑‑‑ "Civil Procedure Code (V of 1908), S.105(2) and O.II, R.2 & O. XLI, R.23‑‑‑Order of remand on preliminary point by appellate Court‑‑ Appeal competent but no appeal preferred‑‑‑Order becomes final and cannot be re‑agitated‑‑‑Suit resisted as barred under O.II, R.2 and dismissed by trial Court on that score‑‑‑Appellate Court reversing decree and remanding case for fresh decision on other issues‑‑‑No appeal preferred against order of remand‑‑‑Held, objection under O.II, R.2 could not be re‑agitated in fresh appeal:" In PLD 1971 Lah. 89 it was held:‑‑‑ "Civil Procedure Code (V of 1908), S.105(2) and O.XLIII, R.I(u) read with O.XLI, Rr.23 & 23‑A‑‑‑Order of remand appealable, but no appeal filed against same‑‑‑Such order cannot be challenged in course of appeals which may ensue from fresh findings of trial Court under order of remand:" In PLD 1974 SC 208 it was held:‑‑‑ "O.VI, R.17, O.XLI, R. 23 & S.105(2)‑‑‑Pleadings‑‑‑Remand of case by appellate Court‑‑‑Amendment of pleadings after remand‑‑‑Case remanded for retrial on particular issue‑‑‑Jurisdiction of trial Court under 6VI, R.17 (after remand) to allow amendment of pleadings confined only to the particular question‑‑‑Court cannot on remand allow the particular issue to be abandoned and proceed to try case upon other issues‑‑‑Pronouncements made by appellate' Court which parties have chosen not to appeal against attain finality under S.105(2) and cannot be disturbed. The trial Court is not allowed in any proceedings after the remand to re‑open questions already determined by the appellate Court or abandoned by the parties in appeal in which an order of remand was ' passed:'

14. Even otherwise the transaction which has been described as Adhlapi was in fact a transaction of sale. The revenue record shows that the father of respondents Nos.l to 4 was in possession of the suit land as a tenant. Being conscious of the superior right of potential pre‑emptors it appears that the parties at the time of mutation described it as an Adhlapi transaction. Had it been an Adhlapi transaction then the mutation should have been in the name of Ilam Din who was tenant under the original owner. However, through the impugned transaction, the land in question was mutated in the name of his four sons. When the suit for the pre‑emption was filed, it seems that the defendants realized that their scheme did not work, therefore, they had the mutation cancelled by review of the said mutation. The act of having the impugned mutation reviewed reflects a collusion between the respondent‑purchasers and the vendors. A perusal of the review proceedings makes an interesting reading inasmuch as both the parties including the vendor i.e. respondent No.5 agreed that the mutation be cancelled. The ostensible purpose of the said review was that respondent No.5 had become a co‑sharer with Ghulam Rasool and he could not have sold specific Khasra numbers. However, this could not have been a valid reason for the parties to have Sought review as respondent No.5 was in exclusive possession of the suit land he could sell specific Khasra numbers and could deliver the possession also. The suit land had admittedly been handed over to respondents Nos.l to

4. Once the transaction and delivery of possession was complete neither the parties nor the revenue officials were left with any authority to cancel the mutation as the said transaction was not violative of any law. It is pertinent to note that respondent No.5, the original owner of the suit land did not appear before the learned trial Court to comment upon the impugned transaction i.e. whether it was a sale or Adhlapi or to explain the background of subsequent review of mutation. The impugned mutation is dated 21‑2‑1971; the suit for pre‑emption was filed on 19‑2‑1972 and the impugned mutation was reviewed on 8‑2‑1976.

16. The afore-going narration of facts would clearly indicate that the impugned transaction was in fact a transaction of sale and an abortive attempt was made to disguise it as Adhlapi and having failed therein, they got it cancelled to frustrate the petitioners' right of pre‑emption.

17. For aforementioned reasons, the impugned judgment dated 15‑4‑1982 passed by the learned Additional District Judge, Rahimyar Khan is set aside, this civil revision is accepted and the judgment and decree dated 6‑1‑1979 passed by the learned Civil judge, Rahimyar Khan is restored. There shall, however, be no order as to costs. AA./A‑742/L Revision accepted.