Find a Lawyer

Regular Second Appeal.No.126 of 1977, heard on 11th June, 1984.

---S.100--Punjab Pre-emption Act (I of 1913), S.15--Limitation Act (IX of 1908),S.3--Pre-emption suit--First appellate Court dismissing suit decreed by trial Court--Issue of limitation not decided by first appellate Court by taking into consideration all circumstances of case and appellate judgment suffering from non-reading of oral as well as documentary evidence--Effect of recital in sale-deed regarding delivery of possession of disputed land also not taken into consideration and contentions of parties on this point not taken notice of--Judgment of first appellate Court set aside and case remanded for adjudication afresh of all issues challenged before such Court including issue of limitation.

Ch. Abdul Razzaq for Appellant.

Ch. Khurshid Ahmad for Respondent.

Date of hearing: 11th June, 1984.

This Regular Second Appeal is directed against the judgment and decree dated 9-2-1977 passed by the Additional District Judge, Lahore.

2. The facts necessary for the purposes of this appeal, briefly stated, are that the appellants-plaintiffs instituted a suit against the respondents-defendants for possession of land, measuring 9 Kanals 4 Marlas, situate in Mauzia Bhogiwal, Tehsil and District Lahore, through pre-emption of sale of the said land made by Muhammad Abdullah respondent-defendant No.4 in favour of respondents-defendants Nos.1, 2 and 3. The sale-deed was executed on 18-1-1969 but was registered on 10-2-1969. The suit was instituted on 10-2-1970 in the Court of Mr. Muhammad Afzal Javed, Civil Judge, The plaintiff-appellant claimed the superior right of pre-emption as a co-sharer in the Khata and as real brother of the vendor.

3. The suit was resisted by the respondents-defendants Nos. 1 to 3 who apart from controverting the case on merits also raised the objection of waiver, acquiescence and estoppel against the appellant plaintiff as also the plea that the suit was barred by limitation and was hit by the principle of partial pre-emption.

On the divergent pleadings of the parties, the following issues were framed by the trial Court:-

(1) Whether the plaintiff is estopped from maintaining this suit

(2) Whether the plaintiff waived or relinquished his right to pre-empt the sale of the suit land

(3) Whether the defendants have made any improvements on the suit land If so, are they entitled to be compensated and to what extent

(4) Whether the defendants are entitled to the cost of conveyance and to what extent

(5) Whether the suit is for partial pre-emption and if so what is its effect

(6) Whether the suit is time-barred

(7) Whether the plaintiff has a superior right to pre-empt the sale of the suit land as against the vendee defendants

(8) Whether the ostensible sale price of Rs.12,650 was fixed in good faith or actually paid

(9) If issue No.8s is not proved, what is the market value of the suit land

(10) Relief.

The learned trial Court found issues Nos. 1 and 2 against the defendants. Under issue No.6 it was held that the suit is within time. In consequence the suit of the appellant-plaintiff was decreed by judgment and decree dated 9-6-1975, leaving the parties to bear their own costs.

Respondents Nos. 1 to 3 feeling aggrieved by the aforementioned judgment and decree of the trial Court preferred an appeal to the learned Additional District Judge, Lahore, who accepted the same by his judgment and decree dated 9-2-1977 and dismissed the suit of the appellant-plaintiff.

Feeling dissatisfied with the judgment and decree of the lower Appellate Court the appellant-plaintiff has come up in the present Regular Second Appeal before this Court.

3. The learned counsel for the appellant submitted that the issue of limitation has not been properly decided by the lower Appellate Court and that while reversing the finding of the trial Court on this issue the learned lower Appellate Court not only misread the evidence but also omitted to read the documents pertaining thereto and in particular admission of the vendees on this point. The learned counsel in this context pointed out that the admission of Khushi Muhammad vendee appearing as D.W.5 has been absolutely kept out of consideration by the lower Appellate Court.

4. The learned counsel for the contesting-respondents, at this stage took permission to make a submission and submitted that the issue of limitation as decided by the lower Appellate Court also suffers from the defect that the contentions raised by the respondents before him, for example the contention regarding the effect of recital of the sale-deed as regards the delivery of possession of the land in dispute has not been dealt with and given effect while deciding the issue of limitation.

The learned counsel also submitted that the contentions of the respondents on the issues of estoppel and waiver (issues Nos.1 and 2) have not at all been adverted to despite the fact that those have been clearly assailed in the grounds of appeal before the lower Appellate Court, and not only that but also the same were agitated against at the time of hearing, and above all written arguments were submitted both by the respondents as well as by the appellant which covered not only the issue of limitation but also the aforesaid two issues.

The learned counsel drew my attention to the order dated 14-1-1977 passed by the lower Appellate Court wherein the fact of submission of written arguments has been incorporated.

The learned counsel for the contesting respondents also contended that the attendant circumstances in fact require the remand of the case so that the lower Court records its finding on issues Nos. 1 and 2 as well.

5. The learned counsel for the appellant submitted that if the matter has to be remanded as canvassed by the learned counsel for the contesting respondents then obviously the judgment and decree of the lower Appellant Court cannot be maintained and the issue of limitation shall also be directed to be decided afresh.

6. To this the learned counsel for the respondents readily conceded and submitted that he has no objection to the opening of the question of limitation and in such an event the respondent would also like to urge points which though urged before the lower Appellate Court have not been taken notice of in the impugned judgment.

7. Having given consideration to the controversy involved I find force in the contentions of the learned counsel for the appellant that the issue of limitation has not been decided by the lower Appellate Court by taking into consideration all the circumstances of the case and that the impugned judgment suffers from non-reading of the oral as well as documentary evidence.

8. The learned counsel for the contesting respondents has also correctly pointed out that the effect of the recital in the sale-deed regarding the delivery of possession of the disputed land has not been taken into consideration and the contentions of the parties on this point have not been taken notice of.

9. I would, however, refrain from further commenting on this issue as I agree with the consensus of both the learned counsel that the case merits to be remanded as lower Appellate Court has not only not decided the point of limitation by misreading the record but the findings of the trial Court on other issues challenged before the lower Appellate Court have also not been adverted to and no decision in respect thereof has been given by it.

10. In view of the foregoing discussion allowing this appeal I set aside the judgment and decree of the lower Appellate Court dated 9-2-1977 and remand the case for adjudication afresh of all the issues which were challenged in appeal before the said Court, including the issue of limitation, in accordance with law.

There will, however, be no order as to costs.

I am told that the court which decided this matter no longer exists. The learned District Judge, Lahore may, therefore, hear the appeal himself or entrust it to some other Additional District Judge for disposal. The parties have been directed to appear before the learned District Judge, Lahore on 21-7-1984.

M.Y.H. Case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.