MUHAMMAD BASHIR Versus MUHAMMAD HUSSAIN

SARDAR MUHAMMAD ASLAM, J.--- This direct appeal assails the judgment of learned Judge-in-Chamber of Lahore High Court, Bahawalpur Bench, allowing R.S.A. of respondents Nos.1 to 3 by reversing judgment of the learned District Judge and restoring that of the trial Court decreeing the suit of the pre-emptors.

2. Precisely respondents Nos.1 to 3 filed a suit for possession through pre-emption of land measuring 100 Kanals located in Chak No.87, Tehsil Hasilpur transferred through registered sale-deed dated 19-11-1975 in favour of appellant-vendee, claiming superior right on ground of being a co-sharer in joint Khata and owner in estate. The appellant and vendors-respondents contested the suit. Issues were framed; evidence was produced by the parties. Trial Court decreed the suit vide its judgment dated 30-7-1985. Appellant preferred an appeal, which came up for hearing before the learned District Judge, who allowed the same on 20-3-1987, and dismissed the suit of the pre-emptors, which was challenged through RSA, before the Lahore High Court, Bahawalpur Bench. A learned Judge-in-Chamber allowed the same giving rise to this direct Appeal.

3. Learned counsel for the appellant raised following contentions:--

(i) that the land in dispute was not pre-emptible under Colonization of Government Lands Act, 1912;

(ii) that no evidence worth the name has been produced to establish payment of full sale price to the Government by the pre-emptor, in respect of land on the basis of which superior right is claimed;

(iii) that consent declaratory decree passed in the absence of provincial Government will not help pre-emptors; and

(iv) that the learned Courts below failed to frame the fundamental issue regarding pre-emptibility of the suit land, in view of assertion made in para.8 of the written statement.

4. On the other hand, learned counsel for respondents Nos.1 to 3 submitted that land in dispute was pre-emptible on deposit of full sale price in favour of Government; that he has become co-sharer in the suit Khata on deposit of sale price in favour of the government, notwithstanding the registration of sale deed and that non-framing of an issue as to pre-emptibility of the suit cannot be urged at this stage when no serious objection was raised before courts below.

5. We have heard the learned counsel for the parties at length and perused the record.

6. We would purposely avoid detailed discussion on the contentions raised by the parties, lest it prejudice the case of either side before the trial Court, in view of our intention to remit back the case to trial Court for recording fresh decision. Appellant-defendant specifically pleaded in para.8 of his written statement that suit land is not pre-emptible, in the following narrative:-

7. The controversy was not put into an issue. Learned appellant's counsel has rightly referred to Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384, wherein it was held that non-framing of an issue is an illegality amounting to exercise of jurisdiction illegally or with material irregularity and the case was remitted back for framing of issue and recording of fresh evidence by the trial Court. Reference was also made to revenue record Exh.P.18, Exp.D.19 and Exh.D.20 to show that the land vested in the Provincial Government, hence was not pre-emptible. Support was sought from the pronouncements made in Muhammad Aslam and others v. Shabbir Ahmad and others PLD 2003 SC 588, Abdullah v. Muhammad Hayat and 2 others 1994 SCMR 90, Noor Muhammad through his Legal Heirs v. Muhammad Tufail and others 1991 SCMR 512, Ahmad and others v. Ghulam Haider 1972 SCMR 357 and Mst. Rehmat Bibi v. Nathe Khan and others PLD 1969 SC 197.

8. We have gone through the law cited above and find that land vesting in the Provincial Government was not pre-emptable in view of notification number 74 dated 12-6-1944, relating to Bahawalpur State. Learned counsel for the respondents argued that this question was though urged before the learned Courts but was not argued, hence cannot be raised before this Court. In reply, learned counsel for the appellant referred to The Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1, wherein it was held on the filing of an appeal the entire matter becomes re-open and sub judice and has to be decided in accordance with law prevalent". In this view of the matter even if, a ground raised and not pressed which relates to fundamental question can be considered by the Court. Reference can conveniently be made to Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895.

9. The objection raised by the appellant-defendant in the written statement regarding exemption from pre-emption of the suit-land was not put to an issue. Appellant was seriously prejudiced in not being able to produce evidence to prove the assertion. The irresistible conclusion, therefore, is to remit the case back for on the issue framed below:

(i) Whether the suit-land is exempted from pre-emption, in view of notification number 74 dated 12-6-1944, issued from the department of the Prime Minister of Bahawalpur? OPD

10. For what has been discussed above, we allow this appeal, set aside judgments of all the Courts below and remit the case back to the trial Court for decision afresh on issue No.5 and newly framed issue, after granting an opportunity to both the parties to produce fresh evidence, if they so desire, on evidence already available on record and to be produced, if any. Findings on rest of the issues will remain intact.

M.B.A./M-71/SC Case remanded.