2006 SCMR 1761 (PLP)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the judgment, dated 2-4-2004 passed by the learned Lahore High Court, Lahore, whereby the civil revision petition preferred on behalf of petitioners has been dismissed and judgment and decree dated 28-10-1997 passed by learned Additional District Judge, Kharian has been kept intact.

2. The facts of the case has been mentioned elaborately in the judgment impugned hence reproduction whereof would be of no use. Suffice it to say that the petitioners were vendees qua sale transaction dated 13-7-1986 which was challenged by means of a pre-emption suit by the predecessor-in-interest of the respondents which was dismissed by the learned Civil Judge by means of a decree, dated 15-5-1995, however, on appeal preferred on behalf of respondents it was set aside vide judgment impugned, hence, this petition.

3. Mr. Mehdi Khan Chauhan, learned Advocate Supreme Court entered appearance on behalf of petitioners and contended strenuously that the evidence which has come on record has not been appreciated in its true perspective by the learned appellate and revisional Courts which resulted in serious miscarriage of justice. It is argued that the question of decreeing the suit would have not arisen as Talb-e-Ishhad was never made by the pre-emptors (respondents). It is urged with vehemence that the question of limitation has not been dilated upon and decided by the learned appellate and revisional Courts properly and the suit preferred on behalf of respondents should have been dismissed on the point of limitation. It is also argued that the suit of pre-emption cannot be decreed in favour of the legal heirs of the original pre-emptor as no decree could have been passed during the lifetime. It is also contended that pre-emptor has got no superior right of pre-emption as the land was not located adjacent to the land in question. It is also pointed out by the learned Advocate Supreme Court on behalf of petitioners that there are certain glaring contradictions in the statements of witnesses produced by the respondents to substantiate their claim which have been ignored by the learned appellate and revisional forums and on this score alone the judgment impugned is liable to be set aside. It is also mentioned that the Talbs could not be proved by adducing worth of credence evidence by the respondents. It is lastly argued that no reasoning whatsoever has been given by the learned High Court for upholding the judgment of learned Additional District Judge and reversing the judgment of learned trial Court which being well-reasoned and thus, the judgment impugned is laconic.

4. Sh. Naveed Shehryar, learned Advocate Supreme Court appeared on behalf of caveators and strenuously controverted the view point as canvassed at bar on behalf of petitioners with the further submission that learned appellate and revisional Courts have taken into consideration all the pros and cons of the controversy and set the same at naught in accordance with law and settled norms of justice. It is also pointed out that the evidence which has come on record has been appreciated in its true perspective and moreso, that the objection of limitation was neither raised in the pleadings nor brought to the notice of learned trial Court but in order to frustrate the object to the judgment and decree passed by the learned appellate forum the objection of limitation was raised for the first time before the learned High Court which has been discarded for the valid reasons as given in the judgment impugned. The learned counsel for caveators has supported the judgment impugned being unexceptional and well-based for the reasons enumerated therein.

5. We have carefully examined the rival contentions, scanned the entire evidence and perused the judgment of learned trial and appellate Courts as well as the judgment impugned. We intend to dilate upon the question of limitation first which has been pressed into service time and again by the learned Advocate Supreme Court on behalf of petitioners. It is worth-mentioning that the objection of limitation was never raised before the learned trial and appellate Courts but on the contrary it was introduced at revisional stage and no reason whatsoever could be given for this laxity. We are conscious of the fact that the question of limitation being a question of law can be raised at any moment but it must not be lost sight of that initially it should have been incorporated in the pleadings. A careful perusal of the written statements is indicative of the fact that no objection whatsoever was raised qua limitation which was never pressed into service and no issue was got framed which, in our considered view, amounts to waiver. It is worth-mentioning that no cross-appeal was filed on the point of limitation by the petitioners. In this regard reference can be made to case Atta Hussain Khan v. Muhammad Siddique Khan 1979 SCMR 630.

6. Insofar as the dictum as laid down in case Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 is concerned that would have no substantial bearing on the merits of this case, hence it would be an academic exercise to discuss it again as it would not serve any useful purpose. We have also adverted to the contention of learned Advocate Supreme Court that the suit is not maintainable as no cause of action whatsoever was available to the petitioners. This contention has probably been made in oblivion of the provisions as enumerated in section 20, C.P.C. read with Order VI, rule 2, C.P.C. which stipulates that "it does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved to entitle the plaintiff to a decree". (1948 Pat. 723).

7. We have also addressed to the question as to whether factum of contiguity does constitute superior right of pre-emptor? This is not the first occasion when the question of contiguity is being examined but it is well-settled by now that the factum of contiguity does constitute superior right of pre-emption which aspect of the matter was discussed in case Haji Rozi Gul v. Mst. Mumtaz Begum 1999 SCMR 1915 as follows:-- "(11) Mr. Saeed Baig, learned Advocate Supreme Court, representing respondent No.1, submitted that the appellant's claim throughout had been that appellant had purchased the whole property vide registered Sale-deed Nos.314, 315 and 317 but the property which was subject-matter of registered Sale-deed No.316 was never pressed into service before any of the two Courts below and the learned High Court and, therefore, claim of the appellant that he remained co-sharer vide purchased portion of the disputed land through registered Sale-deed No.316 is not tenable. The learned counsel had further urged that the learned two Courts below have concurrently held that being an owner of contiguous property she had superior right of pre-emption which finding had been upheld by the learned High Court whereas the appellant had no such right. (12) After perusal of the record we find that the contentions raised on behalf of the appellant can hardly justify the reversal of concurrent findings of the two Courts below duly affirmed by the learned High Court. The concurrent findings aforesaid are based on the correct appraisal of evidence made available on the record of the case. Even if another view was possible on the submissions made by the learned counsel for appellant, this would hardly provide justification to interfere in the findings concurrently arrived at by the learned two Courts below and affirmed by the learned High Court."

8. The question of contiguity being question of fact cannot be re-considered as the evidence led in this regard has been examined in its true perspective by the learned appellate Court as follows: ".... I have given ample consideration to the material available on the file and I hold that the plaintiff was not a share-holder in the Khatas of the suit-land, however, his land as per entries of Shajra Kishatwar is adjacent to the land in dispute consequently, on the basis of contiguity, I hold that the pre-emptor enjoy superior right of pre-emption qua the vendee/defendant."

9. The learned Single Judge in Chambers of High Court has also adverted to this point and discussed in a comprehensive manner in the judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference: "(7) On the issue of superior right of the respondents, the learned counsel for the petitioners admitted that one corner of the suit-land and that of the respondents' land abutted and touched each other and the said two pieces of land were attached with each other at a corner. The lands thus, adjacent each other. In support of the ground that Bunna Had to be shared equally to give physical contiguity to the lands, neither any law nor any precedent, were presented on behalf of the petitioners. The concurrent findings of the learned Courts below rendered through due and proper appreciation and analysis of evidence do not deserve any interference on the contiguity of the lands to vest the respondents with a superior right."

10. Besides that the question that Talb-e-Ishhad was not performed has rightly been considered by the Courts below which aspect of the matter has been taken care of properly by the learned High Court in the judgment which being unexceptional does not warrant interference. Insofar as the question of contradictions is concerned no grave contradiction could be pointed out by the learned Advocate Supreme Court on behalf of the petitioners and minor contradictions can be ignored which usually do creep in with the passage of time No other point was argued. The petition being meritless is dismissed and leave refused. M.H./M-124/SC Petition dismissed.