1997CLC 1163 (PLP)

parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under section 35‑A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. "

4. Learned counsel for the petitioners relying on the judgments in "Saeed Ahmad v. M/s. Indo Enamel Works Ltd., Lahore" (PLD 1954 Lahore 490), "Muhammad Hassan v. Zafar Ali Khan" (PLD 1962 (W.P.) Peshawar 199) and "Mahboob Alain v. Mir Zaman etc." (PLD 1974 Lahore 218) contended that the appeal on behalf of the present petitioners alone before the learned lower appellate Court was and their petition in this Court is competent, although Rehmat, one of the joint vendees, did not challenge the decree in appeal and revision. He submitted that the principle of partial pre‑emption does not apply to the case of the vendees, therefore, even if Rehmat vendee did not challenge the decree, the appeal ought to have been accepted by the learned Appellate Court, at least to the extent of the shares of the petitioners.

5. In Saeed Ahmad (supra) the learned Full Bench of this Court observed as under:‑‑ "When an appeal directed only against a part of the decree has been filed, the Court of Appeal can, in view of Order XLI, Rule 33 deal with the whole decree. That a jurisdiction to interfere with the whole decree exists even when the claim in appeal relates to a part cannot be doubted though it may be objected that the provision is exceptional and only grants a power which may or may not be exercised. This objection does not, however, render the argument without force. In the first place, while the powers which are recognized by rule 33 would be exercised only in .exceptional cases, the provision itself is not exceptional. It explains the function of a Court of appeal. In the second place, though the powers may be exercised in exceptional cases, it would be the duty of a Court to see whether it should or should not exercise such powers. It may refuse to interfere in a particular case even on the ground that the party has not thought fit to file an appeal. But the duty to consider the matter as well as the discretion to interfere in spite of the fact that a cross‑appeal has not been filed exists."

6. In Mahboob Alam (supra) it was observed by a learned Single Bench of this Court that the application of Order 41, Rule 33, C.P.C. "depends upon the circumstances of each and every case and the Appellate Court is empowered in a proper case to vary or reverse the decree of the trial Court even in favour of a party failing to prefer appeal".

7. In the cases of Saeed Ahmad and Mahboob Alam (supra) this Court held that under Order 41, Rules 4 and 33, C.P.C., the Appellate Court may vary or reverse a decree as a whole although not appealed against by all the judgment? debtors. Both these cases did not relate to pre‑emption matters. The case of Muhammad Hassan (supra) is distinguishable inasmuch as the Appellate Court exercised the jurisdiction and dismissed the suit of the pre‑emptor as against all the six vendees, although one had not preferred the appeal. In the present case the Appellate Court refused to interfere in the decree on a valid ground. Thus, all these precedent cases do not apply to the facts of the present case.

8. On the contrary learned counsel for the respondents submitted that in a. joint sale where neither the sale price is separately paid or contributed nor are the shares of the vendees separately mentioned, the decree cannot be challenged by some of the vendees alone. He explained that the land was jointly purchased by Mehmood Ahmad, Bashir Ahmad, Mahanda, Rehmat Ali and Sher Muhammad without specifying their respective shares and payment of sale price and that Rehmat, one of the vendees, did not challenge the decree in appeal and revision, therefore, the decree attained finality, as the decree could not be split up. In this regard relying on ' Sher Muhammad v. Muhammad and others" (1981 Law Notes (N.U.C) (SC) 214), 'Abdullah and 3 others v. Abdul Karim and , others' (PLD ‑1968 SC 140) and ' Manghta Khan and others v. Mst. Hamida, Begum and others' (PLD 1981 SC 51) he contended that in such circumstances the appeal on behalf of some of the vendees only was liable to be dismissed and according to him the impugned judgment and decree. of the learned Appellate Court was unexceptionable.

9. In Sher Muhammad (supra) the Hon'ble Supreme Court held as .follows:‑‑ _ "As laid down in Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140) and reaffirmed in Manghta Khan sad others v. Mst. Hamida Begum and others (PLD 1981 SC 51) in such cases where the contribution of a sale price is not. specified in any separate portion qua each vendee, the sale is one and its unity cannot be broken so as to let one vendee‑ fight about his own separate share. The order of the High Court and as a matter of fact the judgments and decrees of the Courts subordinate thereto, have now become final against the other co?vendees who have not challenged the same by filing any petition before us, with the result that the petitioner cannot split up that transaction so as to safeguard the sale just in a fraction or portion qua his own share. It may be reiterated that it was conceded before us by the learned counsel that the other co‑vendees have not chosen to file any appeal. The present petition consequently fails and is dismissed in limine." In Abdullah v. Abdul Karim (supra) it was observed by the Hon'ble Supreme Court as follows:‑‑ "This argument cannot, however, be accepted in the absence of any proof that payment of the price was made by the various vendees of this group in specified amounts. There can be no presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the consideration was mentioned as a lump sum." "The test for treating sale transaction as divisible for purpose of pre?emption, approved by this Court in the case of Abdullah is that the shares of all the vendees should be specified and further that all of them should have made contribution towards the price proportionate to the purchase by each one of them. The approach in this behalf in Maghi v. Narain and others 1914 Pb. Rec. 18 was approved."

10. It is not the case or the petitoners that . each of the vendees had purchased a specific share in the suit land and that each one of them contributed separately towards the sale price proportionate to their respective shares. This position is also not borne out by the relevant mutation. The learned Additional ‑ District Judge was, therefore, right in making the following observations:‑‑ "Additionally, the transaction of the disputed land is not divisible, therefore, the appellants cannot claim for partial decree as such the contribution of the price of the disputed land was not separately specified qua the each vendee and the transaction cannot be split up."

11. Learned counsel for the petitioners failed to establish that each vendee had purchased the specific share in the suit land and had also contributed towards the sale price proportionate to his respective share. In this view of the matter the sale is indivisible and cannot be split up so ,as to exclude the share of Rehmat vendee, who did not challenge the judgment and decree passed by thta? rned trial Court. so far as the submission of the learned counsel for the petitioners on t e basis of Rules 4 and 33 of Order 41, C.R.C. is concerned exercise? answer is that it was discretionary with the learned Appellate Court to exercise the jurisdiction under these provisions of law. The Appellate Court did not exercise this jurisdiction in favour of the present petitioners for good reason that the sale between the vendees was not divisible and, therefore, could not be split up to the extent of the vendees who had challenged tote decree of the learned trial Court.? ‑