Mst. AMRO AND Others vs SAWAB GUL AND Other
This matter arises from a long-standing property dispute concerning a house originally given as dower to a widow who held it as a limited owner under custom, and subsequently mortgaged. Reversioners instituted a suit for possession by redemption upon payment of the mortgage charge. The lower courts dismissed the suit on various grounds including res judicata, but the Peshawar High Court accepted the plaintiffs' second appeal and granted possession upon payment of Rs. 310. Leave to appeal was granted by the Supreme Court to consider whether a decree for possession could be passed without compensating the mortgagees for costs incurred in reconstructing the house. The Supreme Court held that the appellants failed to press the relevant issue regarding improvements before the first appellate court and did not raise it before the High Court, and further found no material on record to support the contention. The appeal was accordingly dismissed, upholding the High Court's judgment.
- Whether a decree for possession by redemption can be passed without allowing mortgagees the costs incurred for the reconstruction of the property?
- Can an issue regarding compensation for improvements not pressed before the first appellate court be raised for the first time in the Supreme Court?
- Whether limited owners under custom possess the right to alienate property left by the last full owner without legal necessity?
- Order IX Rule 3, Code of Civil Procedure 1908
MIAN BURHANUDDIN KHAN, J.-Feroze, who died in 1910, was survived by three widows, he gave the house in dispute to one of them named Mst. Bibi Begum as her dower. She and the other two widows namely Mst. Mahbub Jan and Mst. Nazir Jan were limited owners under the custom. Sawab Gut and Muhammad Gut minor sons of Hashim Khan were Feroze's reversioners and they instituted a suit, through their mother, against the three widows for a declaration to the effect that the widows of Feroze being the limited owners have no right to alienate any portion of the property left by Feroze. The matter was, however, referred to arbitration and the arbitrators gave the award on 24-4-1910. This award was set aside by. The learned Civil Judge for the reason that the arbitrators had taken into account matters extraneous to the dispute, and decreed the suit for declaration on 13-5-1910. It may be added that during the pendency of this suit Mst. Bibi Begum had mortgaged the suit house to Sher Muhammad, Fazal Din and Khewa Din for Rs. 95 for a period of 15 years and the mortgagees were allowed to make improvements in the house which was then Khandar.
2. Sawab Gul and Muhammad Gut's suit was dismissed under Order IX, rule 3, C. P. C. But it was restored later on and was dismissed again in default. During this period Mst. Bibi Begum died leaving behind Mst. Wafa Begum, her mother and Tajamul Hussain her brother. Sawab Gut and Muhammad Gut again instituted a suit against Sher Muhammad for declaration to the effect that the mortgage of the house in dispute by Mst. Bibi Begum in favour of Sher Muhammad was not binding on him being without legal necessity, Mst. Mahbub Jan and Mst. Nazir JAn alongwith the heirs of Mst. Bibi Begum were impleaded as defendants. Finally the Civil Judge held that the house in dispute was given to Mst. Begum as dower and the plaintiffs had no right to claim the same, and dismissed the suit vide judgment dated 20-11-1912.
3. Sawab Gul and Muhammad Gut both filed a joint appeal in the Court of the District Judge who vide his order dated 10-1-1913 held that the house was not the dower property of Mst. Bibi Begum but dismissed the appeal on account of the fact that the suit had already been dismissed under Order IX, rule 3, C. P: C. Appeal' to the Court of Judicial Commissioner in revision also failed.
4. Out of the three mortgagees Sher Muhammad, Fazal Din and hewa Din, Fazal Din died leaving behind Sher Muhammad and Khewa Din heirs. Stier Muhammad, on the basis of an unregistered- deed dated. 1-9-1913 transferred his mortgagee's rights in the house in favour of his wife Mst.
Sharifa and Mst. Sharifa sold on 23-4-1955 her aforesaid rights to ---lam Khan. On the death of Khewa Din his mortgagee's rights were merited by his widow Mst. Amro the present appellant.
5. On 8-2-1967 Sawab Gut and Muhammad Gut instituted a suit against Sharifa widow of Shier Muhammad, Mst. Agro widow of Khewa Din, Adam Khan and Sher Dad for possession of the aforesaid house by redemp--petition on payment of Rs. 310 on account of mortgage charge. The suit was tested and the Civil Judge decided the matter holding that the suit house as the dower property of Mst. Bibi Begum and the cause of action was rued by the principle of res judicuta.
Plaintiffs filed appeal before the District Judge which was dismissed on 6-3-1971 They filed a second appeal core the Peshawar High Court which was accepted vide the impugned den for possession of the house on payment of Rs.310. Leave was granted by this Court vide order dated 15-10-1975 in these words. In the its and circumstances of the case a question arises whether the decree for possession could be passed without allowing the mortgagees the cost incurred by them for reconstruction of the house in question.
6. Learned counsel's main contention is that the learned Single Judge the High Court, by setting aside the concurrent finding of the two Courts below, has executed in the exercise of his jurisdiction; that the amount improvements spent by the defendants/appellants in the construction of the house in dispute on the Khandar assessed by the Local Commissioner comes to 4,000, to which the two Courts below slid not advert to on the ground at the suit of the plaintiff/respondents was dismissed. This plea for improve--ments was held redundant. The learned High Court Judge ignored this aspect of the case and thus deprived the appellants of a substantial amount which they were entitled. We have gone through the evidence and word and find that there is no material to support the contention raised the learned counsel. Moreover, the appellants have not pressed Issue No. 7 before the first appellate Court nor this issue .Vas raised before the Learned High Court Judge, Perusal of the impugned judgment would show that other issues were discussed and decided accordingly. We find no merit in this appeal, which is accordingly dismissed.