MUHAMMAD ASLAM and 2 others vs Syed MUHAMMAD AZEEM SHAH and 3

' IRSHAD HASAN KHAN, J.---This appeal with the leave of the Court is directed against the judgment of the Lahore High Court, Bahawalpur Bench whereby the regular second appeal filed by the appellants was dismissed.

2. The brief facts are that the suit land was sold by respondents Nos.2, 3 and their deceased mother Shah Bibi by means of a registered sale-deed dated 18-5-1976 (Exh. D/2) in favor of the appellants at the ostensible sale price of Rs,20,000. Respondent No,1 filed a suit for pre-emption on 18-5-1977 on the basis of being co-sharer in the Khata and being an heir of the vendor. The suit was resisted by Muhammad Aslam son of Ibrahim, appellant No,1 herein along with his two minor brothers Muhammad Ameen and Muhammad Azam, appellants Nos.2 and 3 respectively through their brother appellant No,l. The learned trial Court, on the basis of pleadings of the parties, framed issues thereon and evidence led by them,, under issue No,1 held that the respondents had the superior right, but dismissed the suit on the ground of estoppel under issue No,8 through judgment and decree dated 15.2-1981. Appeal of respondent No,1 against the said judgment and decree was allowed vide judgment dated 10-9-1983 by reversing the finding of the trial Court on the issue of estoppel. The appellants failed to file any cross-objections. In their regular second appeal against the above judgment and decree of the First Appellate Court superior right of pre-emption was claimed as against plaintiff/respondent No,1 on the ground that the suit land was under cultivation of their father before the registration of the sale-deed in their favor on 18-5-1976. The submission was that the appellants' father was a tenant of the suit land and on his demise, the appellants inherited this tenancy and the doctrine of sinker was not applicable to them. The contention was repelled simply on the ground that the learned trial Court decided issue No,1 in favors of the plaintiff/respondent No,1 and against the appellants who did not file any cross-objections before the First Appellate Court. They were, therefore, precluded to agitate this issue in view of judgment of this Court in Knawel Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53) wherein it was held that where no cross-objection had been filed before the First Appellate Court to challenge fading on one of the issues involved in the case, the fading on that issue attained finality and was not liable to be re-opened. Similar view was taken in Khairati and 4 others v. Aleemuddin and another (PLD 1973 SC 295) wherein it was held, it is no doubt true that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection.

3. After hearing the learned counsel for the parties at some length, we also find that the controversy raised herein is concluded by the aforesaid judgments of this Court.

4. In view of the above, the appeal is hereby dismissed with no order as to costs.

Appeal dimsissed.