Mst. ALLAH JAWAI And Others vs AMIR KHAN And Other
This petition for leave to appeal arises from a pre-emption suit filed against the petitioners-vendees regarding the purchase of land via Mutation No. 1724. The trial court decreed the suit in favor of the pre-emptors, and the first appellate court and Lahore High Court dismissed the subsequent appeal and civil revision respectively. The petitioners sought leave to appeal on the grounds that possession was transferred earlier making the suit time-barred, and that the right of pre-emption based on collateral status was declared un-Islamic. The Supreme Court held that the sale concerned an undivided fractional share of joint land incapable of physical possession, that the plea of limitation was a mixed question of law and fact not raised in the original pleadings, and that no grounds existed to interfere with the concurrent findings of the lower courts. Consequently, the Court refused to grant leave to appeal and dismissed the petition, affirming that limitation pleas not raised in pleadings cannot be entertained at appellate stages when involving mixed questions of fact and law.
- Can a plea of limitation be raised for the first time before the first appellate court when it involves a mixed question of law and fact?
- Is physical possession capable of being taken of an undivided fractional share of joint land in a pre-emption matter?
- Whether concurrent findings of lower courts on pre-emption suits warrant interference by the Supreme Court without compelling legal grounds?
ORDER
MIAN BURHANUDDIN KHAN, J.--The petitioners/ vendees had purchased the suit land vide Mutation No.1724. The sale was pre-empted by the respondents by suit filed on 18-7-1974. After recording the evidence of the parties the learned trial Judge decreed the suit vide order dated 10- 2-1981. This order was challenged in appeal which was dismissed by the learned Additional District Judge, Jhang. Thereafter, the petitioners filed a civil revision in the Lahore High Court which was dismissed in limine vide the impugned order, dated 18-10-1986. The petitioners now seek leave to appeal on the grounds that the sale was complete in the instant case and the possession stood transferred of the land in dispute, to the petitioners/ vendees on 27-5-1973 as is apparent from the statement of the vendor recorded by the Revenue Officer on Mutation No.1724; that as the suit was filed on 18-7-1974 after the lapse of one year, therefore, the same was time-barred but the Courts below failed to make any observation about this fact; that in the light of decision of this Court reported in PLD 1986 SC 360 the collateral's right of pre-emption has been declared as un-Islamic and has been abolished being against the injunction of Islam, and, therefore, suit of the respondents which was based on the superior right of pre-emption of the property in dispute on the ground that they being collaterals and heirs of the vendor, was not maintainable.
2. We find in the impugned judgment that the only ground before the learned High Court, in the revision petition was impugning the] validity of the judgment and decree of the learned Civil Judge, Shorkot dated 10-2-1981; and the learned First Appellate Court observed that the sale had not been brought about by means of registered deed; only mutation was attested on 23-4-1974 and the suit was instituted 05 18-7-1974 and the petitioners had not taken the plea of limitation in their pleadings and had raised it for the first time before the Firs Appellate Court and, therefore, it found the question of limitation to be a mixed question of law and fact, and, therefore, it was not inclined to deal with it at the appellate stage and there was no evidence on record to prove that the possession of the suit land was transferred to the petitioners at the time of reporting the matter to the Patwari and. Therefore, the learned Court turned down the plea raised by the petitioners. The learned High Court Judge also observed that the subject-matter of the sale is undivided fractional share of the joint land of the Khata and this could not be capable of being physically taken possession of. This being the finding, we do not find any reason to interfere with the impugned judgment, and we refuse to grant leave,. Petition dismissed.