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Civil Petition No.609‑R of 1983, decided on 21st February, 1984.

(From the judgment dated 3‑8‑1983 of the Peshawar High Court passed in Civil Revision No.60 of 1980).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), 5.115‑‑Point taken but abandoned at time of hearing before High Court‑‑Held, cannot be permitted to be raised before Supreme Court‑‑Leave to appeal refused.

Maulvi Sirajul Haq, Advocate Supreme Court instructed by M. Afzal Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 21st February, 1984.

.‑‑ Chanan Din respondent brought a suit to pre‑empt the sale of land comprised in Khasra No.877 in village Mian Dheri, Tehsil Haripur, claiming to have superior right on account of contiguity with his own land. The ostensible sale price was Rs.45,000 but according to him the actual amount paid was only 88.5,000. The petitioners/vendees resisted the suit and set up the plea that they had equal right by virtue of gift of one Marla of land by their father from.

Khasra No.894 which also adjoined the disputed land and as such the plaintiff had no superior right. Among other pleas was also one of limitation upon the assertion that possession under the sale had been taken on 17‑9‑1976 whereas the suit had been filed on 4‑1‑1978. The suit was, however, decreed by the trial Court on payment of Rs.45,000. The petitioners filed appeal. A cross‑objection was also filed by the respondent /plaintiff. But while the appeal was dismissed the cross objection was partly allowed and the price was reduced to Rs.25,842. The petitioners, thereupon, filed revision in the Peshawar High Court. During the hearing of the revision, the only points pressed were firstly that the District Judge lacked pecuniary jurisdiction to hear the cross objection and secondly that the sale consideration of Rs.45,000 had been proved and as such recourse to five years average in determining the market value was unwarranted. The first point was repelled but they succeeded on the second point, with the result that the decision of the trial Court that the sale price was Rs.45,000 was restored. This is vide order dated 3‑8‑1983 which is impugned by this petition.

2. Learned counsel for the petitioners contends that the petitioners had, by the factum of the gift which was valid even in the absence of registration of the relevant document, acquired equal right and as such the respondent could not claim a superior right and secondly that the respondent's suit had been barred by time in view of the factum of delivery of possession having been made more than a year before the institution of the suit as is borne out by the relevant Khasra Girdawari. These grounds had no doubt been taken in the revision petition but none of them finds mention in the impugned order of the High Court which gives rise to a presumption that the same had not been raised all during the hearing. Learned counsel is unable to show that in fact the points had been raised before the High Court at the time of hearing of the arguments. A point though taken but abandoned at the time of hearing before the High Court can not be permitted to be raised before us. No other point being pressed, the petition is dismissed.

S . Q . Petition dismissed.

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