MUHAMMAD SHARIF and others Versus HASSAN DIN and others

Civil Petition No, 197 of 1979, decided on 1st April, 1979.

Result: Petition dismissed.

Summary

This matter arises from a petition for special leave to appeal directed against the order of the Lahore High Court, which dismissed the petitioners' regular second appeal regarding a pre-emption suit. The core legal question involved whether the lower courts erred in failing to record findings on unpressed issues and whether the respondents possessed a superior right of pre-emption as collaterals of the vendor. The Supreme Court held that issues expressly not pressed before the trial court cannot be agitated at the second appeal stage, and that concurrent findings of fact regarding the collateral status of the pre-emptors based on cogent evidence are unexceptionable. The court laid down the principle that a party cannot abandon issues before the trial court and subsequently seek to raise them in higher appellate forums, and affirmed the concurrent decrees granting pre-emption rights to validly established collaterals.

Questions settled in this judgment

Whether issues not pressed before the trial court can be agitated in a second appeal?
Do collaterals have a superior right of pre-emption regarding agricultural land sales?
Are concurrent findings of fact based on pedigree tables open to interference where evidence is cogent?

pre-emptionsecond appealcollateralsunpressed issuesconcurrent findings

MUHAMMAD AKRAM, J.---This is a petition for special leave from the order, dated 27th of January, 1979, whereby a learned Judge of the Lahore High Court at Lahore has dismissed a regular second appeal filed by the petitioners against the respondents herein.

Briefly stated the relevant facts are that one Ghulam Qadir had entered into the following two transactions in favour of Abdullah, father of the petitioners:--

(1)By means of Mutation No, 1213 attested on the 25th of October, 1971, he purported to make a gift of the land measuring 9 Marlas comprised in Khasra No, 724 situated in village Jooke, Tehsil Narowal, District Sialkot, in favour of the predecessor of the petitioners.

(2)In addition to this by means of another Mutation No,1214 attested on the 25th of October, 1971, he also sold the land measuring 32 Kanals 10 Marlas situated in village Jooke, Tehsil Narowal, District Sialkot, in favour of the predecessor of the petitioners for Rs,15,000.

On this the respondents brought a suit against the petitioners herein, after the death of their father, pre-empting the two transactions on the ground that as collaterals of the vendor they had a superior right to acquire the land by pre-emption. In this connection they further alleged that the first mentioned transaction was in reality a sale but it was given the colour of a gift in order to defeat their right of pre-emption. The petitioners resisted the suit and the trial Court framed the following issues arising out of the pleadings of the parties:-

(1)Is suit for partial pre-emption? O.P.D.

(2)Are plaintiffs estopped by their conduct and have also waived their right if any? OPD (3) Is suit not properly valued for purpose of court-fee and jurisdiction? OPD.

(4)Whether plaintiffs have superior right of pre-emption as against the vendee? OPP

(5)Were Rs,15,000 bona fide filed or actually paid as the sale price? OPD.

(6)On non-proof of above issue what was the market value of suit land at the time of sale? O.P. Parties.

(6-A) Whether transaction under Mutation No, 1213 is in fact a sale and not of Hiba? OPP.

(7)Relief.

After recording the evidence the learned Civil Judge, Narowal partly decreed the suit of the plaintiffs-respondents. He observed that issues Nos. 1 to 3 were not pressed before him. On issue No,4 he found that the plaintiffs were proved to be collaterals of the vendor with Bura as their common ancestor, Issue No,5 was decided in favour of the defendants and consequently the issue No,6 did not arise. The Court found against the plaintiffs-respondents on issue No, 6-A and held that the plaintiffs had failed to establish that the transaction embodied in Mutation No, 1213 attested on the 25th of October, 1971 was not a gift but a sale. In conclusion the trial Court, therefore, decreed the suit of the plaintiffs-respondents for pre-emption of the land comprised in Mutation No,1214 on payment of Rs,15,000.

The decree was affirmed on appeal of the petitioners which was dismissed by the learned District Judge, Sialkot on the 18th December, 1978, and their second appeal was likewise rejected in limine by a learned Judge of the Lahore High Court at Lahore on the 27th of January, 1979. We have heard the learned counsel for the petitioners. He contended before us that the three Courts have erred in their failure to record any finding on issues Nos.1 to 3 reproduced above. But in this connection it is evident from the trial Court's judgment that these issues were not pressed at the hearing and were consequently decided in the negative. In these circumstances, the High Court was justified in holding that these did not arise to be agitated at the last stage in the second appeal after these had not been pressed and given up. On the merits evidently the concurrent finding recorded by the two lower Courts to the effect that the plaintiffs-respondents were proved to be the collaterals of Ghulam Qadir vendor is unexceptionable and is based on cogent evidence of the two pedigree-tables Exhs. P.6 and P.7. Even though issue No,6-A was found against the plaintiffs they were nonetheless, as collaterals of the vendor, entitled to the decree of pre-emption of the land comprised in the mutation for sale bearing No,1214 on payment of Rs,15,000. This petition has, therefore, no force and is rejected.

Judges on this bench

Muhammad Akram390 judgments
Karam Elahee Chauhan664 judgments