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Civil Appeals Nos. 4 to 6/P of 1981, decided on 2nd December, 1985.

(On appeal from the consolidated judgment and order of the Peshawar High Court, dated 11-11-1980 in Regular Second Appeals 174 to 176 of 1970).

---Art. 185(3)--Civil Procedure Code (V of 1908), 5.100--Second appeal- -Pre-emption suit--High Court setting aside concurrent findings of facts on new pleas and remanding case for decision afresh--Order impugned--Leave to appeal granted on ground that High Court erred in remanding case for determination of question whether appellants had become owners in suit land on account of time-barred mortgage, and if so, whether they possessed superior right of pre-emption against respondent, thus providing an opportunity to respondent to amend their plaint particularly as they had enough time to do so.

---S. 100--Second appeal--High Court reversing concurrent findings which were arrived at by two Courts below after considering case from every possible angle--Held: High Court will not interfere with an erroneous finding, however, gross and inexcusable the error may be excepted on strong legal grounds which can be held to tantamount to interference on a question of law--A concurrent finding of fact reached by lower Courts will not be disturbed by High Court in a second appeal even 9f it disagrees with that finding on its own view of evidence.

---S. 100--Second appeal--Raising of fresh pleas in--Held: Parties are bound by case, which arises on their pleadings which have been enquired into, by Trial Court--A plea which should have been taken in trial but was not taken, cannot be raised for first time in second appeal--In case of new pleas which are in nature of additional pleas, parties are not entitled to relief on facts or grounds not stated or referred to in their pleadings--Therefore, except upon very strong grounds, a party will not be allowed to urge new pleas in nature of additional pleas in second appeal--It is for parties to take up necessary pleas and have necessary issues framed in Trial Court--If they do not do so, they cannot ask Appellate Court to remand case so that issue may be framed on new pleas raised at appellate stage and case may be tried afresh.

Muzammil Shah v. Gul Badishah Civil Appeal No. 57/P of 1972 and P L D 1979 SC 965 ref.

Jalaluddin Khan, Advocate-on-Record for Appellant.

Abdul Samad Khan, Advocate-on-Record for Respondents.

Date of hearing: 2nd December, 1985.

This consolidated judgment will dispose of all the abovementioned three Civil Appeals Nos. 4/P, 5/P and 6/P of 1981 against the consolidated judgment and order of the Peshawar High Court, dated 11-11-1980, as parties in these three appeals are the same.

2. These appeals arise out of three suits filed for pre-emption by Amir Haider, respondent herein, pre-empting the sale (mortgages rights) in favour of the appellant. The respondents claimed a superior right to pre-empt on the ground of co-ownership, contiguity and participation in immunities the appendages. The appellant resisted the suits on the ground that these transactions were not pre-emptible as they related to the sale of mortgagee rights. The learned trial Court framed the following issue a:

(i) Whether' the transaction in question is not pre-emptible.

(ii) Whether the plaintiff has a superior right of pre-emption.

(iii) What is the sale price and whether it was fixed in good faith or paid.

(iv) What is the market value of the suit land.

No alternative plea was raised that the statutory period for redemption had expired before the sales i.e. the vendors had become the owners of the suit lan4, and, therefore, it was not a sale of mortgagee rights. Appellant, however, agitated it in the trial Court but the learned Court rejected the plea on the ground that the vendor treated himself as mortgagee tend not owner of the land despite the fact that the right to redeem it had become time-barred. The other reason given was that the mortgagor was not made a party in the suit, and, therefore, in the absence of any decree in favour of the vendor, the transaction was one of sate of mortgagee rights and that the sale of such land was pre-emptible. The learned trial Court further held that respondent had no superior right to pre-empt as it was not established that they were co-sharers in the same Khata. Consequently, the suits were dismissed by the learned Civil Judge, Swabi, per judgment, dated 26-4-1968.

3. Three separate appeals were filed in the Court of the District Judge, Mardan which were heard and decided by the learned Additional District Judge, Marian, vide judgment, and decree, dated 20-1-1970 holding that respondents had no superior right to pre-empt as they were not co-sharers but only co-mortgagee which right could not be treated on the, same pedestal as the former. It was also held by the learned Additional District Judge.

"It was not alleged in the plaint that Minha Jan and others were the mortgagee and had solo their mortgagee rights to the defendants. Secondly, in para. 2 of the plaint it was alleged that the plaintiffs had, a superior right of pre-emption as they were owners in the suit land, were co-sharers by time-barred mortgage which tantamount to ownership, were owners of common Pullah and had common immunities. It is abundantly clear that they never asserted to have a superior right of pre-emption on the ground that they were co-mortgagees. They had based their right on four particulars classified grounds and during the pendendy pf the suit did not deem it necessary to amend their plaint. Now it is a belated attempt on their behalf at the appellate stage to claim a superior right of pre-emption as co-mortgagees, a ground never agitated in the trial Court. It is not desirable to allow a party to travel beyond its pleadings and to put up a case at the appellate stage which was never its case in the trial Court. I find that the plaintiff-appellants failed to establish a superior right of pre-emption on the ground of co-share ship and the finding of the learned lower Court on issue No.2 is to be maintained."

4. Respondents then filed three separate R. S. As. in the High Court which were accepted, vide the impugned judgment on the ground that the respondent had become owner of the mortgaged land by afflux of time according to the revenue record and, therefore, this question should be determined with reference to the evidence so as to enable the respondents to raise the plea of superior right of pre-emption and for that matter they should be given an opportunity to amend the plaint.

5. On a petition seeking leave to appeal leave was granted by this Court per order, dated 23-6-1981 on the ground that the High Court erred in remanding the case for the determination of the question whether the appellants had become owners in the suit land on account of time-barred mortgage and if so whether they possess superior right of pre-emption against the respondent; thus providing an opportunity to the respondent to amend their plaint particularly as they had enough time to do so.

6. Learned counsel for the appellant Mr. Jalaluddin Khan argued that the learned High Court Judge, in setting aside the judgments and decrees of the two Courts below and reversing the concurrent findings arrived at, has exceeded the jurisdiction vested in him by law; that the learned Judge also erred in construing finding of the learned Additional District Judge to the effect that he had not considered the plea of the plaintiff /respondent that they are co-mortgagee in the suit '' land for over 60 years and as such erred in arriving at a wrong conclusion. It was further contended by the learned counsel that reliance was placed on the case of Muzammil Shah v. Gul Badishah (Civil Appeal No. 57/P of 1972 decided on 27-4-1980). This case was clearly distinguishable from the facts of present case on the ground that in the cited case the mortgagor was a party to the case and secondly the property in dispute was jointly held by the co-mortgagor in such a way that none of the co-mortgagees could be said to be the exclusive owners of any particular area thereof or to be excluded from the ownership of any portion while in the present case this is not the position.

7. We have examined the contentions raised by the learned counsel and would agree with him that the concurrent findings arrived at by the two Courts below was after considering the case from every possible angle. As no plea, at any stage, was raised nor any issue was framed to the effect that the respondent had become owner by afflux of time, it is considered unnecessary to re-open the case on this ground. The High Court will not interfere with an erroneous finding, however, gross and inexcusable the error may be except on strong legal ground which can be held to tantamount to interference on a question of law concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence. Moreso, the parties are bound by the case which arises on their pleadings which have been enquired into by the trial Court. A plea which should have been taken in the trial but was not taken, cannot be raised for the first time in second appeal. P L D 1979 SC 965. In the case of new pleas which are in the nature of additional pleas, the general rule is that the parties are not entitled to relief on facts or grounds not stated or referred to in their pleadings. Therefore, except upon very strong grounds, or under very special circumstances, a party will not be allowed to urge new pleas in the nature of additional pleas in second appeal. Even if the new plea is in the nature of an alternative case arising out of the lower appellate Courts' decision, it will not be allowed to be urged in second appeal except upon very strong ground. It may be added that it is for the parties to take up the necessary pleas and have necessary issues framed in trial Court. If they do not do so, they cannot ask the appellate Court to remand the case so that issue may be framed on the new pleas raised at appellate stage and the case may be tried afresh.

Thus, having taken into consideration the argument of the learned counsel, we allow all the aforementioned three appeals and remand the case to the High Court for decision on merit. No order as to costs.

M.I. Appeals allowed.

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