KHIZAR through Legal Heirs and anothers vs ALLAH DITTA and 4 others
This petition for leave to appeal arises from a suit for pre-emption filed by the respondents, claiming a preferential right as collaterals of the vendors. The trial court decreed the suit, a decision upheld by the first appellate court, which noted that the petitioners had conceded the issues of superior right of pre-emption and limitation. The High Court subsequently dismissed the second appeal. The core legal question before the Supreme Court was whether the suit was barred by limitation and whether the petitioners could challenge the finding of limitation despite having conceded the point in the lower appellate court. The Supreme Court held that the petitioners failed to challenge the appellate court's record of their concession, either in the memorandum of second appeal or the current petition. Furthermore, on the merits, the Court found the suit was filed within one year of the mutation attestation, as the land was under mortgage and possession remained with the mortgagee. Consequently, the Court affirmed the concurrent findings of the lower courts, holding the suit was within time, and refused leave to appeal.
- Can a party challenge a finding of fact on appeal if their counsel conceded that issue before the lower appellate court?
- Does a concession recorded in an appellate judgment bind the party if not specifically challenged in subsequent proceedings?
- When does the limitation period for a pre-emption suit commence if the land sold is under mortgage?
ORDER
' KHALIL-UR-REHMAN KHAN, J.---This petition arises out of a suit for pre-emption filed by the respondents seeking preferential right being collateral of the vendors. The suit was contested by the petitioners and the learned trial Court framed seven issues including thereof the superior right of pre-emption and of limitation after recording evidence produced by the parties decreed the suit vide judgment and decree dated 18-4-1977. The appeal filed failed as the same was dismissed by the learned Additional District Judge vide judgment dated 21-2-1978. Learned Appellate Court noted in paragraph 2 of its judgment that the learned counsel for the present petitioners conceded at the bar that the findings of the learned lower Court on the issues of superior right of pre-emption qua the petitioners and that the suit was not barred by limitation. The second appeal filed was dismissed by the learned Judge of the High Court vide impugned judgment dated 17-7-1998.
Hence this petition.
2. It appears that the question of limitation was not specifically urged at the time of hearing before the High Court as there is no mention of the said question in the impugned judgment. Learned counsel, however, argued that the learned Courts below have failed to advert to the question of limitation and that the finding recorded thereon is wrong and that the suit should have been dismissed on the question of limitation.
3. There is no merit in the submission. Though in the grounds of appeal the question of limitation was agitated but it appears that the said question was conceded at the time of arguing the appeal as it stands so noted in paragraph 2 of the appellate judgment. Again in Memorandum of second appeal the ground of limitation has been urged but it was nowhere stated that the learned counsel had not connected the ground of limitation and mention of the said concession had been wrongly made in the judgment. In the Memorandum of present petition again the factum of making of concession has not been challenged what to say of filing an affidavit of the counsel who had appeared and argued the appeal. Even on merits the plea is without substance. The mutation of sale was attested on 31-1-1972. The suit was filed on 31-1-1973. The land was under mortgage as is apparent from the Mortgage Deed Exh.D.1 executed on 4-12-1971. This Mortgage Deed (Exh.D.1) read with agreements Exhs.D.2 and D.3 established that the possession was with the mortgagee.
The Mutation Exh.P.2 also shows that the sale has been made subject to the mortgage. This being the position, the suit having been filed within one year of attestation of the mutation was within time and as such finding recorded by the learned Trial Court that the suit is within time, which finding was then maintained by the learned First Appellate Court as well as the Second Appellate Court is well-founded.
4. Leave to appeal is, therefore, refused and the petition is dismissed.