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Civil Appeal No. 26 of 1987, decided on 13th December, 1988.
(One appeal from the judgment of the High Court, dated 3 6 s1986, in Civil Appeal No. 56 of 1983).
O. XII, R.5 (1) Petition for appeal Filing of EssentialsPetition for appeal before Supreme Court is required to be accompanied by certified copies of judgment or order appealed against as also those of Trial and Lower Appellate Courts.
S. 14 Civil Procedure Code (V of 1908), O.VIII, R.2 Pre emption suit Written statement Plea not raised in written statement Effect Objection of partial pre emption not raised in written statement Rules of procedure enjoined upon defendant to raise all grounds of defence expressly and distinctly in written statement Omission to raise a definite defence in written statement ordinarily would debar a defendant to raise such a defence at subsequent stage unless introduction of the same was permitted by amendment of written statement Where defence of partial pre emption was neither specifically raised in written statement nor permission was sought to add it by amendment, allowing such objection at argument stage would not be permissible Trial Court would not be justified in entertaining such a defence at the stage of final arguments.
Haji Muhammad. Yousaf Khan v. Abdul Aziz Khan and 5 others P L D 1983 S C (AJ&K) 188 ref.
M. Tabassum Aftab Alvi for Appellant. Raja Sher Muhammad Khan for Respondents.
The appeal in addressed against the order of the High Court passed on June 3, 1986, whereby the decision of the District Judge was upheld.
2. The controversy raised by the parties is reduced herein to the point of partial pre emption. Ghulam Haider Khan, vendee appellant purchased suit property including proportionate share of the vendor in Shamlat deh. Mst. Khurshid Begum and Abdul Haleem pre empted the sale of land and omitted to include shamlat deh in their suit. In written statement defendant /vendee repudiated the claim of the pre emptors but failed to" raise the objection of partial pre emption. At the stage of final arguments, however, an objection was raised to that effect. The objection prevailed and the suit was dismissed. On appeal before the District Judge the order of Trial Court was reversed. The learned Single Judge in the High Court also concurred with the District Judge, overruled the objection and decreed the suit.
3. Raja Sher Muhammad Khan, the learned counsel for the respondents, raised a preliminary objection to the effect that the petition for leave to appeal and the appeal were untenable for noncompliance of the provisions of the rules of Supreme Court. It was emphasised that certified copy of the decree of the High Court was not appended with the petition for leave to appeal as such the petition was not maintainable.
4. We have considered the objection in light of the provisions of Supreme Court Rules. Order XII, rule 5(1) of the Azad Jammu and Kashmir Supreme Court Rules, postulates that a petition of appeal shall be accompanied by certified copies of judgment or order appealed against as well as those of trial and lower appellate Courts. It does not include the "decree" under appeal. There is no force in the objection it is, therefore, overruled.
5. It is already noticed that the objection of partial pre emption was not raised in the written statement, as such no issue was framed to that effect and no evidence was led. The rules of procedure enjoined upon defendant to raise all grounds of defence expressly and distinctly in written statement. An omission to raise a definite defence in written statement ordinarily debars a defendant to raise such a defence at subsequent stage unless the introduction of the B same is permitted by an amendment. In this case the defence of partial pre emption was neither specifically raised in the written statement nor permission was sought to add it by an amendment. In the circumstances it was not permissible to allow such an objection at arguments stage. The trial Court was wrong in entertaining such a defence at the stage of final arguments.
6. The other aspect of the proposition is that in district Poonch no shamlat deh is reserved for the use of estate owners. Identical proposition was raised before this Court in Haji Muhammad Yousaf Khan v. Abdul Aziz Khan and 5 others" P L D 1983 SC (AJ&K) 188. It was contended that failure of pre emptor to sue for Shamlat Deh, hit the suit by rule of partial pre emption. It was observed, in that case, that the position relating to shamlat deh in district Poonch was different from other districts of Azad Kashmir. In Poonch shamlat deh was not granted like other districts, except for the purpose of graveyard, mosque and village path. Shamlat deh reserved for graveyard, mosque, spring and village path was not subject to preemption. Therefore, shamlat deh reserved in district Poonch was neither alienable nor pre emptible. It was finally concluded that in such cases the rule of partial pre emption was not, therefore, enforceable in Poonch.
7. This position is of course subject to an exception. In case in some villages shamlat deh is reserved for the use of estate owners of that particular village the onus is on the party pleading exception to prove it positively to avail the benefit of the rule of partial preemption. On this premises, the onus was on vendee defendant to plead and prove the presence of shamlat deh reserved for the community of the village where the suit land was situate. We find that vendee defendant neither alleged nor proved the reservation and availability of shamlat deh in village where the suit land is situate. In absence of evidence in support of the claim, it is inexpedient to dismiss the suit C on fictitious and artificial ground of partial pre emption. For our satisfaction we inquired from Mr. Alvi, as to whether he was in possession of any document consisting of record of rights, to understand that shamlat deh was reserved in the village. The answer was in negative. This further suggests that the defence of partial pre emption is purely fictitious. In the circumstances we are not convinced to entertain the objection on merits.
We find no fault with the finding of the learned single Judge in the High Court and the District Judge. The appeal .being devoid of force is, therefore, dismissed with costs.
A.A./241 SC(AJ&K)
Appeal dismissed.
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