GUL MUHAMMAD vs HASSAN KHAN AND 4 OTHERs
This matter involves petitions for leave to appeal against a judgment of the Peshawar High Court, which affirmed the decree in a pre-emption suit. The core legal question was whether the vendees had validly improved their position regarding the right of pre-emption based on contiguity through subsequent gift and exchange transactions, and whether this issue was properly raised and pressed before the lower courts. The Supreme Court held that the petitioners failed to press the plea of improvement before the trial court and the appellate court, despite it being framed as an issue. The Court observed that the plea of improvement could not be accepted without positive findings of fact regarding the alleged gift and exchange transactions, which were absent in the lower court proceedings. Consequently, the Supreme Court dismissed the petitions, affirming that a party cannot seek relief on a ground that was not actively pursued or established through findings of fact in the lower forums. The judgment reinforces the principle that appellate courts will not entertain arguments that were abandoned or not pressed during the trial and first appellate stages.
- Can a party raise a plea of improvement of position in a pre-emption suit for the first time in the Supreme Court if it was not pressed before the lower courts?
- Is a plea of improvement in a pre-emption suit maintainable without positive findings of fact regarding the alleged underlying transactions?
- Does the failure to press an issue before the trial and appellate courts preclude a party from relying on it in a petition for leave to appeal?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH J.-Leave to appeal had been sought from judgment dated 19-3-1979 of the Peshawar High Court through these two petitions, by the first vendees and the second vendee, who were defendants in a pre-emption suit.
2. ' The relevant facts summarised by the learned counsel for the petitioners are that the land in dispute was purchased by Alif Shah petitioner and Gul Bagh Shah respondent by mutation dated 15-5-1966. Later on 8-6-66 Gul Bagh Shah made the sale in favour of Azizullah petitioner. The respondent Hassan Khan filed a suit for pre-emption on 12-5-1967, on the ground of contiguity. But, in the meanwhile, it is alleged that the said vendees had improved their position through a gift made in their favour on 5/11-5-1967, although the mutation thereof was attested on 10-5-1967.
3. However, not only by these improvements, the vendees also tried to defeat the plaintiff's right by transferring the land to Gul Muhammad petitioner, but this mutation was sanctioned much after the institution of the suit in May, 1968.
4. ' The suit was dismissed by the learned trial Court. It was decreed on respondent/plaintiff's first appeal. The revision filed by the two sets of vendees separately were dismissed by the High Court, on 13-9-1979 by a common judgment. They have now sought leave to appeal through these two petitions.
5. ' Learned counsel has contended that the first vendees had improved their position vis-a-vis the plaintiff on the point of contiguity, before the filing of his suit through gift and exchange transactions, therefore, the suit should have been dismissed-the real grievance made is that the learned Single Judge in the High Court did not notice this aspect of the matter.
6. The question raised by the learned counsel was subject-matter of issue No, 4.-"Have the defendants validly improved their position and what is its effect?" The learned trial Court observed and remarked in this behalf that it was neither proved nor was it "pressed by the learned counsel for the defendants:' It is clear from the judgment in first appeal that this question was not raised by the petitioners in opposing the respondents appeal on a point which was decided against them.
7. Same was the petition in the High Court. Although, formally it was raised in the grounds of revisions, it was not urged and pressed at the hearing. It is also not correct to say that the alleged transactions of exchange and gift originally relied upon by the petitioners for supporting their plea of improvement were not noticed by the learned Single Judge-they are mentioned indeed in the impugned judgment which recited the plaintiff's plea that it was an attempt at creating fake transactions. The plea of `improvement' could not be accepted without positive findings of fact on the questions of gift and exchange. They were not pressed before the learned lower Courts. No benefit can be extended to the petitioners now at this stage. Learned counsel's reliance on Muhammad Mujtaba v. Ghulam Ali and others (1) is of no help to the petitioners either; because of non-existence of positive finding on questions of facts involved.
8. ' No other point has been pressed. These petitions are dismissed.
(1) 1980 SCMR7