1. G. SAFDAR SHAH, J.-This petition seeks leave to appeal against the judgment of the Peshawar High Court, dated 14-1-1978, by which the revision application of the petitioners, against the judgment of the District Judge, Abbottabad, maintaining the decree of the trial Court, was dismissed.
2. Respondent Siddiq Hussain Shah purchased agricultural land measuring 9 kanals 3 marlas situate in the area of village Dinga P.I Mohri, Tehsil Haripur, District Abbottabad, for Rs. 12,000, ride Mutation No. 1306 entered and attested on 14-6-1972 and 6-7-1972, respectively. Vide. Mutation No. 1377 entered and attested on 17-11-1972 and 12-12-1972, respectively, the petitioners purchased the suit land from Siddiq Hussain Shah for Rs. 15,000. On 4-7-1973, however, respondent Sarwar Shah filed suit against the petitioners in the Court of Civil Judge, Haripur, for the possession by pre-emption of the said land on the ground that his own land being contiguous thereto he had the superior right.
3. The suit was contested by the defendants-petitioners and in the separate written statements filed by them, they denied the claim of respondent Sarwar Shah on a number of grounds which are reflected from the following issues framed by the learned trial Judge :-
(1) Whether the plaintiff has got a superior right of pre-emption 7
(2) Whether the transfer by defendant 1 to defendants 2 to 6 is ineffective on the rights of the plaintiff' ?
(3) Whether the sale in favour of defendants 2 to 6 is exempt from pre-emption ?
(4) Whether the plaintiff has waived his right of pre-emption?
(5) Whether the sum of Rs. 12,000 was fixed in good faith and paid by defendant 1 to the vendor ?
4. After recording such evidence as the parties wished to produce Before him, the learned Civil Judge decreed the suit of respondent Sarwar Shah on 13-5-1974, in lieu of Rs. 7,664 which he held to be the market value of the suit land. Feeling aggrieved, the petitioners challenged the aid judgment in appeal before the learned District Judge, Hazara Abbottabad) but the same was dismissed, vide his judgment dated 12-7-1975. Finally the petitioners went in -revision before the High Court but their revision application also was dismissed by the impugned judgment.
5. Mr. Nazirullah Khan, the learned counsel for the petitioners has impugned the judgment of the High Court on the following three grounds:
(1) that the learned Single Judge in the High Court was in error to hold that the suit of respondent was within time ;
(2) that the suit land was purchased by the petitioners for constructing a house for their own occupation in the village in which they neither owned a house nor a vacant site measuring more than one kanal and so the pre-emption suit filed against them by respondent Sarwar Shah was incompetent under section 5 (c) of the N.-W. F. P. Pre-emp--petition Act XTV of 1950; and
(3) that the finding of the learned Single Judge in regard to the market value of the land is erroneous inasmuch as instead of evaluating the land on the basis of similar land, he reckoned the price of it on the basis of five years average of the entire land of the village.
6. As regards the first ground urged by the learned counsel, he conceded hat the question of limitation was not raised by the petitioners in their written statement, nor was any issue framed on the point nor indeed was the aid question agitated in the memorandum of appeal filed in the Court of he learned District Judge. The learned 'District Judge, therefore, requested o go into that question holding that it was a mixed question of law and act and consequently the same could not be gone into in appeal.
7. There can hardly be any dispute with the said finding of the learned) district Judge. However, in the High Court the same objection was gain raised by the petitioners but the learned Single Judge, impliedly agreeing with the finding of the learned District Judge, rejected it and proceeded hold that the said objection "loses its importance on another ground. It conceded that the first vendee had sold the suit land to petitioners, i.e Mutation No. 1377 attested on 12-12-1972. Since the first vendee sold he suit land, it would be futile to suggest that the present suit was directed against him. In other words, for all practical purposes the present suit would be deemed to have been filed against the second vendee (i.e. He petitioners). Now the first vendee sold the land to petitioners on 2-12-1972 and the present suit was brought on 4-7-1973. The suit would thus be well within time. In this view, the grievance of the learned counsel for the petitioners that the two Courts below should have taken into consideration the first mutation entered on14-6-1972 and seems to be misplaced, for the first vendee divested himself of his rights after he sold the suit land to petitioners or! 12-12- 1972."
8. The learned counsel for the petitioners has taken exception to the said finding of the learned Single Judge. He argued that the terminus a quo for the running of the period of limitation in this case was 14-6-1972, on which date the mutation of the suit land was entered in the name of respondent Sadiq Hussain Shah, and therefore, the present suit filed by the respondents against the petitioners on 4-7-1973 was clearly barred by the period of limitation, prescribed in section 31 of the N.-W. F. P.
9. Pre-emption Act (XIV), 1950. In support of his contention the learned counsel relied, amongst others, on a judgment of the Lahore High Court in the case of Muhammad Khan and another v.
10. Sadiq and others (PLD 1968 Lah 929).
11. This objection seems to us to be misconceived. The learned District Judge, with whose findings the learned Judge in the High Court has impliedly agreed, was evidently right to refuse to go into the question of limitation, because the petitioners had not taken any plea in that behalf in their written statement, nor was any issue struck thereon, nor indeed had A they taken any ground in that behalf in the memorandum of appeal filed by them in the Court of the District Judge. In this view the learned counsel for the petitioners cannot be allowed to take any advantage of the said finding of the learned Single Judge, because he seems to have attempted to support the finding of the learned District Judge on an additional ground which may or may not be wholly tenable. In this view the various judgments cited by the learned counsel need not be gone into, as they have no application to the peculiar facts of this case.
12. As regards the second objection of the learned counsel all that can be said is that the same stands concluded by the concurrent findings on the three Courts below and so he cannot be permitted to reagitate the same grievance in this Court. It is not the case of the petitioners that there existed no evidence in support of the said finding. Nor indeed ca they make any grievance of the fact that in analysing the said evidence, the three Courts below have committed any error of law or violated an principle relating to the appreciation of evidence.
13. The third objection of the learned counsel also is untenable. The learned trial Judge and the learned District Judge both seem to have gone into the question of the market value, of the suit land with care and consequently the finding recorded by them again would stand concluded as a finding of fact and cannot be reopened in this Court. Reliance by the learned counsel on the judgment of this Court in Malik Hussain and others v. Lala Ram Chand and others (PLD 1970 SC 299) would not help him, because in view of the peculiar facts of the case the said judgment is distinguishable.
14. These are all the points urged by the learned counsel for the petitioners. This petition, therefore, fails and is dismissed.