ABDULLAH BUTT vs MUNAWAR ALI And Other

ORDER

ZAFFAR HUSSAIN MIRZA, J.--The dispute in this case relates to agricultural land measuring about 10 acres comprising Survey Nos.423, 426 and 427 situated in Deh Butt-Serai Taluka Mehar, District Dadu, Sind. This land was transferred to respondent No.2, Muhammad Mian Jan, under the Settlement Scheme. Muhammad Mian Jan the transferee sold the land to the petitioner under registered sale-deed. As the disputed land was contiguous to the land owned by respondent No.1, Munawar Ali, he served a notice on the petitioner expressing his intention to by the said land in exercise of his right of pre-emption. The petitioner in his reply to the notice intimated respondent Munawar Ali that the sale had already been completed. According to Munawar Ali, he then made the required demands (talabs) in accordance with the Muslim Law for exercising his right of pre- emption. As the petitioner did not respond to these demands, Munawar Ali brought a suit in the Court of Civil Judge, Mehar, for possession of the disputed land by way of pre-emption. The petitioner resisted the suit and filed a written statement. On the pleadings of the parties the trial Court framed the following issues: "(1) Are the parties agriculturists?

(2) In the suit land adjacent to the land owned by the plaintiff?

(3)Does the right of pre-emption vest in the plaintiff?

(4)Whether the plaintiff has performed the Talabe Muasbat and other Talabs according to law?

(5) Has the defendant No. l. His land adjacent to the suit land but having owned prior to the institution of this suit?

(6) Is the Court-fee affixed sufficient?

(7) Are the allegations at para. 8 of the W.S. Correct?

(8) Is the plaintiff Shaia?

(9) What should the decree be?"

On issues Nos. 2, 3 and 4, the trial Court gave a finding in the negative whereas, issue No.6 was disposed of as not pressed. Consequently the suit was dismissed on 31-10-1968. Munawar Ali being .Aggrieved appealed against the decree passed by the trial Court, which appeal came up for disposal before the learned Additional District Judge, Dadu, as Civil Appeal No.4/69. The learned Additional District Judge, reversed the findings recorded by the trial Court on. Issues Nos. 2 and 3, on the ground that certain documents were wrongly excluded from consideration by the trial Court.

He also reversed the finding on issue No.4 and held that the demands were duly made in accordance with law. Accordingly by judgment, dated 13-12-1972, the learned Additional District Judge allowed the appeal and remanded the case to the trial Court for fresh decision on issues Nos.2, 3, 6 and 9, "in the light of the observations made above after receiving to documents namely sale-deed and Deh map into evidence."

2. On remand the trial Court once again by its judgment dated 12-12-1973, dismissed the suit.

Munawar Ali challenged the fresh decree passed by the trial Court in an appeal which was also dismissed by the learned Additional District Judge, Dadu, on 30-6-1975, although the learned Court found issue No.2 in favour of Munawar Ali holding on the basis of additional evidence brought on record before him that the disputed land was adjacent to the land owned by Munawar Ali.

3. Respondent Munawar Ali then brought a second appeal before the Sind High Court which was allowed by judgment dated 16-2-1984, whereby his suit for pre-emption was decreed. The petitioner being aggrieved has brought this petition seeking leave to appeal from the aforesaid judgment of the High Court.

4. Mr. Yousuf Rafi, learned counsel for the petitioner has raised the following contentions:- "(1) That the learned Judge in the High Court has misread the evidence on the issues relating to demands.

(2) The learned Judge in the High Court has also misread the evidence on the question of contiguity, by taking into consideration the additional evidence brought on record by the first appellate Court which should have been rejected.

(3) That the right of pre-emption was not exercisable under the Muslim Law in respect of agricultural land of the size involved in the present case."

As far as point No.1 is concerned the High Court took the view that as the petitioner had not challenged the finding on Issue No.4 regarding. Validity of the demands, recorded in first appeal earlier decided on 13-12-1972, when the case was remanded to the trial Court on certain other issues, that finding had assumed finality. On this basis, it was held that in the first appeal subsequently filed after remand, it was not open to the learned Additional District Judge to sit in appeal against the findings recorded by a Court of co-ordinate jurisdiction. In this view of the matter the learned Judge reversed the inconsistent findings on the said issue in the first appeal subsequently decided. However, the learned Judge in the High Court did not examine the correctness of the findings even in second appeal before him. It may be pointed out that under subsection (2) of section 105, C . P. C there is a legal bar on disputing the correctness of an order of remand if no appeal is filed there from but the important prerequisite for attracting this embargo is that the order of remand itself must be appeasable. It appears to us the order of remand in the present case was not appeal able inasmuch as, the same was not passed in terms of Order XLI, rule 23, C.P.C., (from which an appeal lies under Order XLIII , rule 1 (u) , C . P. C) . It seems to us that the remand order in this case was passed in exercise of inherent power of the Court under section 151, C.P.C., from which no appeal is provided in the Code.

5 As regards the second point the position is that the findings of the first appellate Court in judgment dated 30-6-1975 against the petitioner on the question of contiguity was sought to be challenged by the petitioner before the High Court but the High Court refused to go into the question on the ground that the petitioner being the respondent, neither filed any separate appeal nor any cross-objection calling in question the correctness of the said finding. This seems to be a misconceived proposition, in that, Order XLI, rule 22, C.P.C. In term permits a respondent without filing an appeal from any part of the decree passed in his favour on any grounds decided against him in the Courts below. See Khairati and others v. Aleem-ud-Din and another PLD 1973 SC 295.

6. As the High Court has failed to consider the arguments of the petitioner on the merits on the aforesaid issues, we think that this is a fit case for examining, inter alia, the points mentioned above. We, therefore, grant leave to appeal to the petitioner. Security for costs Rs.2,000. The stay granted by this Court on 2-10-1984, shall continue. To be heard on present record but parties may file additional documents if any.