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Regular Second Appeal No.801 of 1971, heard on 16th April, 1985.

---Ss.103 & 100 and O.XLI, R.27--Second appeal--Production of additional evidence--Application for--Maintainability of--High Court is empowered under S.103, C.P.C. to determine any issue of fact necessary for disposal of appeal in case evidence already on record was sufficient--Application for production of additional evidence submitted by appellant in second appeal, but not moved before First Appellate Court, was disallowed by High Court.

---Ss.4 & 15--Civil Procedure Code (V of 1908), S. 100- -Pre-emption suit--Superior right of pre-emption--Divisibility of pre-empted land- Proof--Sale-deed executed between vendor and vendees in respect of pre-empted land showing specified share of each vendee--No specification of proportion existed in which price was paid by respective vendees, no divisibility of pre-empted land, held, could be presumed merely on basis of recital of respective share of each vendee in sale-deed which was silent about payment of price of respective share of each vendee--Courts below in circumstance rightly concluded that sale in favour of appellants/ vendees was indivisible--Second appeal being devoid of merit was dismissed against concurrent findings of fact of two Courts below.

Atta Muhammad v. Ahmad Bakhsh etc. P L D 1971 Lah. 401: Abdullah and others v. Abdul Karim and others P L D 1968 SC 140; Muhammad Khan v. Abdul Khaliq P L D 1981 SC 153; Mushtaq etc. v. Akhtar Hussain 1981 S C M R 944 and Mangta v. Lab Din and others 1982 S C M R 283 ref.

Ch. Muhammad Hassan for Appellants.

Ch. Muhammad Sadiq for Respondents.

Date of hearing: 16th April, 1985.

This regular second appeal has arisen out of a suit for" possession through pre-emption of land measuring 11 kanals 18 marlas situated in Mauza Bhaleke, Tehsil and District Sheikhupura instituted by the respondent against the appellant on 2-7-1969 claiming superior right of pre-emption on the ground of being owner in the estate in which the aforementioned land was situated. The suit was decreed by the learned trial Court on 14-1-1971 in favour of the respondent and the judgment and decree of the learned trial Court were affirmed in appeal by the learned District Judge on 23-7-1971.

2. The appellants had contested the suit on the ground that they were also owners in the estate and as such possessed the same qualification on which the respondent had based his claim. The learned trial Court found that only Nazir Ahmad appellant owned land in the estate, in which the suit land was situated and that the other appellants had become owners in the estate by purchasing the suit land. According to the learned trial Court Nazir Ahmad appellant had also lost his right to resist the respondent's claim of superior right of pre-emption by joining the other appellants with him in purchasing the suit land. The above finding of the learned trial Court was affirmed in appeal by the learned District Judge while dismissing the appellants' appeal.

3. The appellants have filed the present appeal against the judgments and decrees of the Courts below contending that the sale, which was the subject-matter of the pre-emption suit, was divisible, because the share of land of each vendee had been specified h. the sale-deed and the Courts below have erred in not considering the decision in the case of Atta Muhammad v. Ahmad Bakhsh etc. (P L D 1971 Lahore 401) in which the rule laid down by the Supreme Court in Abdullah and others v. Abdul Karim and others (P L D 1968 SC 140) regarding indivisibility of sale was explained. Alongwith the Memo. of Appeal the appellants submitted an application under Order XLI, Rule 27, C.P.C. for production of additional evidence to show that even the appellants other than Nazir Ahmad appellant had become owner in the estate by purchasing some other land before institution of the suit by the respondent. This application, however, merits no consideration for two reasons; firstly, the appellants did not move the learned first appellate Court for permission to produce additional' evidence; and secondly, no prayer for additional evidence can be considered in second appeal in view of the clear provisions of Section 103, C.P.C., which empowers the High Court to determine any issue of fact necessary for the disposal of the appeal if the evidence on the record is sufficient.

4. Learned counsel for the appellants has not relied on Atta Muhammad's case in support of appellants' claim that the sale of the suit land in their favour was divisible because in the above-cited case the question for determination was 'whether the pre-emptor having superior right only in respect of a part of land purchased by the vendees could ask for decree in his favour in respect of the whole land on the ground that the sale was indivisible' and it was in that context that the observation was made that rule of indivisibility of bargain laid down by the Supreme Court in Abdullah's case was not absolute. The question, whether a sale could be declared divisible merely because the shares of all the vendees were specified, but it was not known how they contributed to the price paid to the vendor, did not come up for consideration in Atta Muhammad's case. Learned counsel for the appellants has, however, referred to the observations made by the Supreme Court in Abdullah's case approving the course followed by Allahabad High Court in Ram Nath and others v. Badri Narain and others (ILR XIX Allahabad 148) . In that case the sale-deed showed that the share of each of the five vendees was specified but there was no specification of the proportion in which the price was paid by the respective vendees. In order to ascertain the price paid by each vendee, the High Court framed the following issue and remanded the case to the trial Court:--

"What was- the true price paid by each vendee "

The learned counsel for the appellants has submitted that in cases, where the shares purchased by each vendee has been specified but the proportion in which the sale price was paid by them is not mentioned, the Court should hold an inquiry to find out the price paid by each vendee for his share because this procedure was followed by Allahabad High Court in the aforementioned case and has been approved by the Supreme Court.

5. There is no doubt that the Supreme Court expressed the view that the decision of the Allahabad High Court in Ram Nath's case was correct and approved it but nevertheless the appeal filed by the vendees was dismissed. The rule of law laid down by the Supreme Court in Abdullah's case has been consistently followed by that Court as is evident from Muhammad Khan v. Abdul Khaliq P L D 1981 S C 153, Mushtaq etc. v. Akhtar Hussain 1981 S C M R 944 and Mangta v. Lab Din and others (1982 S C M R 282). It is presumed that the observations made by the Supreme Court in respect of Ram Nath's case must have been in view of the Court while following the rule laid down in Abdullah's case, in the aforementioned case.

Thus in view of the legal position noticed above, the Courts below have rightly concluded that the sale in favour of the appellants is indivisible. Consequently there is no force in this appeal, which is accordingly dismissed with costs.

H.B.T./N-59/L Appeal dismissed.

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