MUHAMMAD SAEED and another vs MUHAMMAD IRFAN and others
This matter involves five appeals arising from a High Court judgment that dismissed revision petitions concerning competing claims of pre-emption over agricultural land. The core legal question was whether the appellants could challenge the pre-emption suits filed by the vendor's son on the basis that they were 'benami' transactions intended for the vendor's benefit, despite failing to press this plea during the settlement of issues at the trial stage. The Supreme Court held that the appellants were precluded from raising the benami plea because they did not insist on the framing of a specific issue regarding it at the trial court, nor did they raise this grievance in their subsequent appeals before the Additional District Judge. The Court reasoned that the mere existence of stray evidence on the record, in the absence of a framed issue, is insufficient to adjudicate upon such a plea. Consequently, the Court dismissed the appeals, establishing the principle that a party cannot resuscitate a plea in appellate proceedings if they failed to press it during the settlement of issues at the trial stage, even if some evidence regarding that plea exists on the record.
- Can a party raise a plea in appellate proceedings that was included in the written statement but not pressed during the settlement of issues at the trial stage?
- Is the existence of stray evidence on the record sufficient to adjudicate a plea that was never framed as an issue for trial?
' SAAD SAOOD JAN, J.---These are five appeals preferred by special leave of this Court from the judgment of the High Court whereby the revision petitions preferred by the appellants were dismissed. These appeals arise in the following circumstances:
2. One Ghulam Hussain owned agricultural land in Chak No, 232/RB, Tehsil Faisalabad. By a registered deed dated 28-7-1979 he sold two Kanals and 2 Marlas of his land to Muhammad Saeed, appellant. Similarly by another registered deed he sold 5 Kanals and 5 Marlas of his. Land to Muhammad Jamil, appellant. It may be mentioned that both the appellants are real brothers. The two sales gave rise to a number of pre-emption suits. One set of suits was filed by Muhammad Ifran, minor son of Ghulam Hussain and the other set was brought by Ghulam Mustafa, brother of Ghulam Hussain. Both pre-emptors based their claim to superior right on the assertion of relationship with the vendor. The trial Court held that as son of the vendor Muhammad Irfan had the most superior right of all to acquire the land. Accordingly, it decreed the suit of Muhammad Irfan but dismissed those preferred by Ghulam Mustafa. From the judgment of the learned trial Court the appellants as well as Ghulam Mustafa preferred appeals in the District Court. A learned Additional District Judge at Faisalabad dismissed the appeals of the appellants. It accepted the appeals preferred by Ghulam M ustafa in that it modified the decree passed by the trial Court by giving a second right of pre-emption to him. From the judgment of the learned Additional District Judge the appellants filed revision petitions in the High Court but these were dismissed. They have now come in appeal to this Court.
' The only contention raised in support of these appeals is that the suits brought by Muhammad Irfan were Benami and were intended entirely for the benefit of his father. It is to be noticed that although this plea was taken by the appellants in the written statements but it does not appear to have been pressed when the issues were being settled. This will appear from the fact that the trial Court did not frame any issue incorporating this plea. It may also be mentioned that even in the grounds of appeal before the Additional District Judge the appellants did not make any grievance of the fact that the trial Court had not framed an issue on the plea of Benami advanced by them in the written statement.
4. It was contended on behalf of the appellants that there was some evidence on the record touching the said plea. This is indeed true but in absence of any issue in this regard the said plea was never put to trial. In the circumstances, the mere fact that certain stray statements with regard to the said plea have been allowed to be brought on the record can hardly be sufficient to record a finding on the said plea. After failing to press the said plea at the trial they cannot now be permitted to resuscitate the same merely on the ground that there is some evidence on the record relating to it. We are therefore not prepared to examine this plea. These appeals are without any merit and are hereby dismissed. There will be no order as to costs.