SULEMAN vs MUHAMMAD KHAN
This petition for special leave to appeal challenged an order of the West Pakistan High Court, which had summarily dismissed a second appeal in a pre-emption suit. The High Court had declined to interfere with concurrent findings of the lower courts regarding the value and nature of improvements made on the land. Before the Supreme Court, the petitioner attempted to raise a new argument, contending that the pre-emption decree was illegal because the petitioner was a co-sharer in a joint khata, and thus, exclusive possession could not be granted without partition. The petitioner further argued this point was covered by an issue regarding the value of improvements. The Supreme Court rejected this argument, holding that the issue regarding improvements could not encompass the question of co-sharership or partition. The Court affirmed that a new point, not raised in the lower courts or the High Court, cannot be introduced for the first time in a petition for special leave to appeal. The petition was dismissed, with the Court noting that the petitioner might address executability concerns during execution proceedings if applicable.
- Can a new legal point, not raised in the lower courts or the High Court, be introduced for the first time in a petition for special leave to appeal?
- Does an issue regarding the value of improvements on land encompass a claim regarding the status of a co-sharer in a joint khata?
- Is a decree for exclusive possession of pre-empted land inherently illegal if the defendant is a co-sharer in a joint khata?
1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from an order of a learned Single Judge of the West Pakistan High Court, Peshawar Bench, summarily dismissing a second appeal.
2. The order discloses that before the High Court only one issue, namely, issue No. 4, dealing with the question of the value of the improvements, was pressed.
3. This second appeal arose out of a pre-emption suit which had been decreed by the Courts below upon concurrent findings on all points, including the question of the value of the improve--ments alleged to have been made on the land by the vendee. The High Court, in these circumstances, took the view that it had no jurisdiction to interfere in second appeal in the face of such concurrent findings as regards not only, the amount of the improvements but also the nature of the improvements made.
4. Learned counsel appearing in support of this petition con--cedes that he is not in a position to say that any other point was urged before the High Court but yet he endeavoured to argue that the decree for pre-emption was an. Illegal decree, as his client, the petitioner, was a co-sharer in a joint khata. In these circumstances, according to the learned counsel, no decree for exclusive possession of the pre-empted land could be passed until a partition had taken place between the joint-holders of the khata.
5. This point was, of course, not taken before the High Court or before any of the Courts below the High Court. No issue was raised with regard to this question, yet the learned counsel sought to argue that it was covered by issue No. 4 which was to the following effect :- "4. Whether the defendant had made any improvements on the land, if so, to what extent and with what effect?"
6. We are at a loss to appreciate how the question now sought to be raised by the learned counsel can be covered by this issue. The argument is entirely misconceived. In any event, we can--not allow a new point to be raised at this stage for the first time.
7. If there is any substance in the contention of the learned counsel then he may well oppose the execution of the decree on the ground that the decree passed is not executable, but he cannot be allowed to raise it as a ground for special leave for the first time in this Court. It is not a question of law relating to the jurisdiction of the Court. This petition is, accordingly, dismissed.