P L D 2007 Supreme Court 460 (PLP)

CH. IJAZ AHMED, J.

Brief facts out of the which the present appeal arises are that original owner of the land in question Nazir Ahmed Khan father of respondents/plaintiffs sold land measuring 338 Kanals and 14 marlas out of land measuring 508 kanals one marla to the appellant/petitioner vide sale Mutation No.189 dated 11-12-1972 for consideration of Rs.1,01,400, Respondents/plaintiffs filed suit for pre-emption through their next friend Malik Sher Muhammad (their real grandfather) as real son of vendor, against the appellant/petitioner wherein they also challenged the sale price of Rs.1,01,400 as fictitious against the sum of Rs.30,000 alleged to have been actually sale price to vendor in the court of Civil Judge 1st Class Mianwali on 5-11-1973. During the pendency of the suit Irfan Nazeer one of the respondents/plaintiffs died. His legal heirs (Mst. Anwar Bibi, mother and Malik Nazir Ahmed, father, vendor) were brought on record and amended plaint was also filed by impleading father and mother of said Irfan Nazir. Malik Nazeer Ahmed Khan, father of the said deceased filed an application before the trial court for deletion of his name which was accepted. Appellant/petitioner filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the trial court framed 17 issues. The trial court decreed the suit vide judgment and decree dated 4-7-1977 on payment of Rs.1,01,400 with costs. Appellant/petitioner being aggrieved filed an appeal in the Court of Additional District Judge, Bhakkar who dismissed the same vide judgment and decree dated 11-6-1991. Thereafter the appellant/ petitioner filed R.S.A. No.58/1991 in the Lahore High Court which was also dismissed vide impugned judgment dated 5-7-2002. Appellant/petitioner being aggrieved filed C.P.No.274-L of 2002 which was fixed before this Court on 23-1-2003 and leave was granted in the following terms:-- "Leave to appeal is granted to consider, inter alia, the following questions:

(i) Whether the High Court has correctly held that the case does not suffer from the vice of partial pre-emption? (ii) Whether the suit brought by minor sons (aged 6 and 2 years) of the vendor having no independent source of income is not collusive? And (iii) Whether the respondents can be denied the decree on this ground, notwithstanding the absence of plea to that effect? (iv) Status quo as regards possession shall be maintained till final disposal of the appeal."

2. Learned counsel for the appellant submits that respondents/plaintiffs were minors at the time of filing the suit therefore respondents/plaintiffs have no sources to file a suit for preemption against the appellant. In fact the suit was filed collusively with the original owner Malik Nazir Ahmed Khan their father. He further maintains that respondents/plaintiffs filed a suit on 5-11-1973 whereas they filed an application for the amendment of the plaint on 11-12-1973 on the ground that there is some misdescription about the area of the land as it was in fact 338 kanals and 14 marlas while inadvertently it has been written as 330 kanals, 14 marlas. Learned counsel of the appellants further urges that Mutation No.189 dated 11-12-1972 clearly shows land in question measuring 338 kanals, 14 marlas was sold. The respondents filed a suit regarding 330 kanals, 14 marlas as evident from heading of the original plaint (page 72 of the present paper book). The respondents/plaintiffs have not given any reasons for amendment of the plaint therefore trial court erred in law to accept the application for amendment vide its order dated 7-6-1975. He further maintains that application was filed on 11-12-1973 whereas affidavit dated 3-1-1974 along with application shows that it was not filed on 11-12-1973. There was cutting on the date which was duly observed by the trial Court in its order dated 7-6-1975. Appellant being aggrieved by the order of the trial Court filed civil revision No.37 of 1975 in the court of District Judge Mianwali who dismissed the same vide order dated 29-6-1975 merely relying upon the statement of the counsel of the respondents Malik Muhammad Aslam who had given statement at the bar at the time of hearing of the revision petition. He further urges that respondents/plaintiffs filed a suit through Malik Sher Muhammad real grandfather and this fact is not in consonance with the ground realities as evident from the first sentence of the cross-examination of said Malik Sher Muhammad which is to the following effect: He further urges that all the courts below have erred in law to decide the suit against the appellant in violation of the principle of partial pre-emption as all the courts below have misread the evidence on record he further urges that principle of waiver is also attracted in the present case which was not considered by all the courts below in its true perspective. He further submits that appellants have taken specific plea of benami in the written statement and the trial court failed to frame issue. Therefore, keeping in view the principle of Islamic Jurisprudence this Court has ample jurisdiction to remand the case to the trial Court for framing fresh issue with regard to collusion/waiver/benami suit. He sums up his argument that judgments of the courts below are not in consonance with the law laid down by the superior courts. In support of his contention he relied upon the following judgments:--

1. Naseer Ahmed's case PLD 1984 SC 403,

2. Abdul Hameed's case 2005 SCMR 895,

3. Zar Wali Shah's case 1992 SCMR 1778,

4. Khurshid Ali's case PLD 1992 SC 822,

5. Ghulam Muhammad's case PLD 1973 SC 444,

6. Ghulam Abbas's case 1993 SCMR 2289, and

7. Hashmat Ali's case PLD 1956 Baghdad-ul-Jadeed 33.

3. Learned counsel of the respondents supported the impugned judgment. He further submits that respondents filed an application for amendment of the plaint on 11-12-1973 which was allowed by the trial Court vide order dated 7-6-1975 against which the revision petition of the appellant was dismissed on 26-9-1975. The said orders were not challenged by the appellant before any higher forum, therefore, appellant could not re-agitate the same before this court as the matter relating to the amendment of the plaint was finalized between the parties. In support of his contention, he relied upon Baqa Muhammad's case PLD 1985 Lah.

476. He further submits that court has ample power to allow the amendment in terms of Order VI, Rule 17, C.P.C. and the law laid down by the superior courts. In support of his contention, he relied upon Jalal ud-Din's case 62 Punjab Record 1914, Mst. Ghulam Bibi's case PLD 1985 SC 345, Bahadar Shah's case PLD 1973 Lah. 513 and Qamar ud Din's case PLD 2001 SC

518. He further urges that principle of waiver or implied waiver is not attracted in the present case. In support of his contention, he relied upon Allah Dad's case PLD 1960 Lah. 900; Muhammad Amin's case 1993 SCMR 498 and Jam Part's case 1992 SCMR

786. He further urges that Naseer Ahmad's case PLD 1984 SC 403 is not law declared by this court as the leave was refused. He similarly urges that case of Abdul Hameed supra (2005 SCMR 895) is also not attracted in the case in hand in view of distinguished features. In the cited case issues were framed and evidence was led by the parties whereas in the present case no issue was framed. He further urges that ground of Benami suit was taken by the appellant in written statement in preliminary objection No.5 and in reply of para 4 on merits. No issue was .framed and the appellant had not claimed and filed any application for framing issue qua the benami suit. No evidence was led by the parties. No suggestion was put to Malik Shear Muhammad who appeared as P.W.6 before the trial Court. Fateh Muhammad did not utter single word in his statement when he appeared before the trial Court as D.W.6. He further urges that the controversy between the parties has been pending since 33 years, therefore, it is not proper at this juncture to remand the case to the trial Court as argued by the learned counsel for the appellant. He further urges that 'appellant could not be given benefit of his own mis-deed or negligence at this stage. In support of his contention, he relied upon Basudev Hazra's case AIR 1971 SC

722. He sums up his arguments that the appellant's counsel had only pressed issues Nos.1, 2, 3 and 17 before the first appellate court. He further maintains that the pleas which were raised by the counsel for the appellant were not taken before the first appellate court as well as before the learned High Court in regular second appeal, therefore, such grounds could not be allowed to be raised before this court.

4. We have considered the submissions made by learned counsel for the parties and have also perused the record. It is a settled law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this court in Muhammad Saleem's case 1994 SCMR 2213; Muhammad Mal Khan's ease 2002 SCMR 235 and Ghulam Sadiq's case 2002 SCMR

677. It is an admitted fact that appellant's counsel has pressed only issues Nos. 1, 2, 3 and 17 before the first appellate Court as evident from the para. 4 of the judgment of the Addl. District Judge, Bhakkar. It is also a settled law that parties are bound by their pleadings. There are various pronouncements of this court qua this proposition of law. See Kanwal Nain's case PLD 1983 SC 53; Hashmand's case 1985 SCMR 1438; Mst. Janat Bibi's case 1988 SCMR 1696; Basit Sibtain's case 2004 SCMR 578; Mst. Murad Begum's case PLD 1974 SC 322; Messrs State Engineering Corporation Ltd's case 2006 SCMR 619 and Shall Muhammad's case 2007 SCMR

368. It is also a settled law that pleadings must be proved through evidence as law laid down by this court in Faqir Muhammad's case PLD 2003 SC

594. In the present case appellant has taken a plea of Benami suit in reply of para.4 of the written statement but he did not prove the same before the trial Court coupled with the fact that the trial court has not framed any issue with regard to this controversy. Even if the court has not framed the issue, the appellant had adduced the evidence in this regard then we may consider this aspect of the case. The appellant, as mentioned above, has not pressed the issues except the aforesaid issues (issues Nos.1, 2, 3 and 17) as evident from the judgment of the first appellate court, therefore, appellant is not entitled to challenge the findings on the other issues as the findings qua the remaining issues has become final between the parties. It is a settled law that when the ground was not raised before the Courts below, then appellant is estopped to raise the same before this Court. There are several pronouncements to this aspect. See Muhammad Feroz's case 2006 SCMR 1304. Aurangzeb's case 2007 SCMR

236. It is an admitted fact that all the courts below after examining the evidence on record have given concurrent conclusions against the appellant. This Court does not, normally, go behind the concurrent findings of fact recorded by the Court's below unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of principle relating to appreciation of evidence, or finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of this court in civil appeals, the burden lies rather heavily on the appellant to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us. It is also a settled principle of law that this court does not meddle with the findings of fact reached by the primary courts or High Court when it is satisfied that the findings of the courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible. Points noted in the leave granting order and the plea raised by the learned counsel for the appellant before us have no force in view of circumstances of the case in hand as the appellant, as mentioned above, has not pressed the issue of partial pre-emption, waiver and others as evident from para. 4 of the judgment of the first appellate court. The appellant, as mentioned above, has not agitated the same before the learned High Court. Therefore, as mentioned above, judgment relied by the learned counsel of the appellant are distinguished on facts and law. As the controversy has been pending adjudication between the parties since last 33 years, therefore, we are not inclined to exercise our discretion as requested by the learned counsel for the appellant to remand the case after framing fresh issue in view of contents of para.4 of the written statement and in view of discussion hereinabove as law laid down by this court in Rana Muhammad Arshad's case 1998 SCMR 1462 and Muhammad Saifullah Khan's case PLD 1989 SC 166.

5. For what has been discussed above, this appeal has no merit and the same is dismissed with no order as to costs. M.H./F-6/S Appeal dismissed.