DOST MUHAMMAD (deceased) through L.Rs, vs MUHAMMAD YOUSAF and others

' FAQIR MUHAMMAD KHOKHAR, J.---The petitioners seek leave to appeal against judgment, dated 21-4-2003, passed by a learned Single Judge of the Lahore High Court, Lahore in R.S.A. No,8 of 1993.

2. The respondents instituted against the petitioners a suit for possession through pre-emption in respect of the suit land measuring 411 Kanals and 10 Marlas, subject-matter of sale Mutation No,248, dated 17-7-1983, on the ground of being co-sharers in Khata and owners in estate. The suit of the respondents was decreed by the Civil Judge, Shahpur, by judgment and decree, dated 20- 4-1986. The appeal of the petitioners thereagainst was dismissed by the Additional District Judge, Sargodha, by judgment and decree, dated 12-6-1988, on the point of limitation. Therefore, they filed Regular Second Appeal which was allowed by the Lahore High Court, Lahore, by judgment,, dated 22-11-1992 and the appeal was remanded to the District Judge, Sargodha, for a fresh decision on merits. The District Judge, Sargodha, dismissed the appeal of the petitioners, by judgment and decree, dated 10-1-1993 which was maintained by the Lahore High Court, Lahore, by the impugned judgment, dated 21-4-2003, passed in R.S.A. No,8 of 1993. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners argued that the principle of Sinker was not applicable in a case relating to the Province of Punjab as held by this Court in Fazal Elahi v. Dewan Ali (deceased) through L.Rs, and others 1984 SCM R 1404. The judgment, dated 10-1-1993, passed by the District Judge, Sargodha, was violative of the remand order, dated 22-11-1992 of the High Court in as much as there was no adjudication of the case on merits. The petitioners had not abandoned the other points except the point of minority of Shahbaz, petitioner No,12. It was urged that suit of the respondents was of a partial pre-emption which could not be decreed. It was next argued that the High Court as well as the District Court were under legal obligation to decide all the questions of law and fact for doing complete justice between the parties which were material to just and fair decision of the case. The learned counsel lastly submitted that the impugned judgment suffered from misreading and non-reading of evidence on record.

4. On the other hand, the learned counsel for the respondents submitted that the petitioners had not abandoned the points before the Courts below which were being agitated before this Court.

Therefore, those should be deemed to have been waived by them as laid down by this Court in Fayyaz Hussain v. Akbar Hussain and others 2004 SCM R 964, Ghulam Muhammad and others v.

Malik Abdul Qadir Khan and others PLD 1983 SC 68 and Raja Ali Bahadur Khan v. Mir Hussain Khan and 2 others PLD 1999 SC AJ&K 41.

5. We have heard the learned counsel for the parties at length and have also perused the available record. We find from the judgment of the District Judge that only point pressed by the petitioners was about the minority of Shahbaz, petitioner No,12 and no other point was agitated. Ordinarily, if a point is raised in Memorandum of Appeal or Revision but not pressed at the time of hearing of the appeal or revision, as the case may be, the same is to be deemed to have been abandoned. See the cases of Fayyaz Hussain (supra) and Ghulam Muhammad (supra). The record also shows that Shahbaz, petitioner No,12, was originally sued through his father as guardian ad-litem. However, the trial Court appointed the Reader of the Court as Guardian of the minor, petitioner No,12 who submitted his reply and participated in the proceedings. Therefore, the interest of petitioner No,12 could not be said to have been jeopardized for non-appointment of guardian ad-litem. Moreover, such a plea was not raised before the Courts below. The learned counsel for the petitioners could not be permitted to agitate the points involving factual controversy before this Court which had already been abandoned before the First Appellate Court and the High Court. In our view, the impugned judgment of the High Court does not suffer from any legal infirmity so as to warrant interference by this Court. This is not a fit case for grant of leave to appeal.

6. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. It is, however, clarified that the decree passed in the present case shall not be construed to invalidate any judgment/decree passed by the Court of competent jurisdiction in some other litigation in relation to the whole or part of the suit land.