JUDGMENT SYED SAJJAD HASSAN SHAH, J.---This petition is directed against the judgment and decree dated 24-10-2008 passed by the learned Additional District -Judge-IV, Swabi, whereby appeal filed by the respondent against the judgment and decree dated 25-10-2007 passed by learned Civil Judge Swabi, accepted, the impugned judgment and decree was set aside and suit of the respondent decreed.
2. Precisely stated facts are that Wazir Zada the plaintiff /respondent (hereinafter called as the respondent) filed a suit against Rehman's Ullah the defendant/petitioner (hereinafter called as the petitioner) for seeking the recovery of possession of exercise of right of preemption in respect of the property detailed in the heading of the plaint. He averred in the plaint that suit property was the ownership of Gul Haleem, transferred through sale Mutation No.412 attested on 18-12-2004 in sale consideration of Rs.20,000 and the defendant/petitioner had shown in his plaint, the exaggerated amount to ward of the right of pre-emption of the respondent. He further asserted that he acquired the knowledge of sale in his Hujra at 4-00 p.M. On 12-3-2005 through one Gul Jamal (informer), the respondent then and there declared to preempt the suit land in presence of the witnesses, thereafter a notice Talb-e-Ishhad through postal registered A.D. Sent in the name of the petitioner as the respondent is the co-sharer contiguous owner and participated in immunities. The suit was contested by the petitioner by filing his written statement, refuted the claim of respondent and asserted that the petitioner purchased the property vide sale-deed dated 20-5-2004 in sale consideration of Rs.50,000 half of the sale consideration was paid on the same day and the possession was delivered to the petitioner, on the same day the sale mutation was entered. After framing the issues in the light of the pleadings of the parties, the learned trial court afforded ample opportunities to both the parties to produce their evidence, after completion of evidence and hearing of the parties, the suit of the respondent was dismissed. Being aggrieved of the judgment and decree, the respondent assailed by filing an appeal, the learned appellate Court accepted the appeal and set aside the impugned judgment and decree and suit of the respondent was decreed.
3. The learned counsel appearing on behalf of the petitioner contended that the respondent was in the knowledge of the sale transaction from the day one, but he never declared his intention to pre- empt the suit land. The respondent and his witnesses cooked up a story of Talb-e-Muwathibat and same was displayed at trial, in view of their contradictory statements of the witnesses and the petitioner, the learned trial Court was not convinced as to performance of Talb-e-Muwathibat, therefore the findings made regarding the issues of Talbs, particularly of Talb-e-Ishhad and returned the findings about the sale consideration and paid Rs.50,000 and also that the respondent is co-owner in the suit property and the petitioner had raised the construction immediately after the sale transaction, entered into between the respondent and the vendor i.e. 20-5-2004 and it was also held that the suit of the respondent not filed within time. The learned appellate Court while deciding the appeal set aside the findings of the learned trial Court and declared that the suit is within time, the Talb-e-Muwathibat and Talb-e- Ishhad performed In accordance with law and failed: to prove that the construction was raised before the notice of Talb-e-Ishhad or the petitioner took the possession of the suit property before Talbe-Ishhad, so the findings rendered under Issues Nos.3, 4 set aside. The learned counsel urged that the learned trial Court had not framed the issues in accordance with the averments made in the written statement of the petitioner, he had categorically stated in paragraph 4 that "on 20-5- 2004 the possession was delivered to him, a sale-deed No. 718 executed on 20-5-2004, whereafter, he has constructed a Pakka house and incurred heavy cost in its construction", in this regard no issue was framed by the learned trial Court and learned appellate Court had also not adverted to this aspect of the case. He further argued that the case be remanded and learned trial Court may be directed to frame the issue in accordance with the said paragraph of the written statement and after allowing the opportunity of producing evidence, then to decide the question of improvements. The reliance placed upon 2009 SCM R 1256.
4. The learned counsel for the respondent vehemently contended that the judgment and decree passed by the learned appellate Court is in accordance with law, as the learned appellate Court went through the entire evidence and then arrived to the conclusion that both the Talbs properly performed and the suit of the respondent was within time and no improvement before the notice Talb-e-Ishhad made by the petitioner. He further contended that at the revisional stage, the point of improvement made in the suit property cannot be agitated and on this point the remand cannot be ordered.
5. Arguments of the learned counsel for the parties considered record carefully perused.
6. A perusal of the record reveals that the learned appellate Court, while deciding the appeal returned the findings regarding the performance of Talbs, after having been considered the entire material available on record, as the respondent produced the informer P.W.3 Sareer Zaman, in his presence on his information in the same sitting, on 12-3-2005 at 4-00 p.M. At his Hujra declared the intention to pre-empt the suit land, whereafter, on 17-3-2005, the respondent got scribed a notice and thumb impressed the same, while the witnesses of the notice including the present one signed the same, notice was produced in evidence as Exh.P.W.3/ 1, Gul Jamal was examined as P.W.4, corrobprated the statement of P.W.3 (informer). Another witness Shahab examined as P.W.5 as attesting witness of notice P.W.3/1, stated that besides Sareer Zaman as witness of notice, he has also signed the notice Exh.P.W.3/1 and then the respondent appeared as P.W.6 as his on witness, testified the same facts and supplemented that the notice was scribed on 17-3-2005, he thumb impressed the same and the witnesses namely Sareer Zaman and Shahab signed the notice and the original notice was sent through registered post and the copy of the notice retained. All the above mentioned witnesses were cross examined on the question of Talbs, but none of them was shattered, although a lengthy cross-examination was conducted on behalf of petitioner, but they remained consistent and no material contradiction brought on the record.
7. It was agitated on behalf of the respondent that instead of original notice the photostat copy was sent to the petitioner, according to the learned counsel, the original brought on the record by the respondent, had the original sent to the petitioner, how the respondent could have produced the original on the record. The learned trial Court while deciding the question of Talb-e-Ishhad returned its findings that the respondent failed to prove Talb-e-Ishhad as notice had not been signed by one of the witnesses, it is important to note that the notice was appended with the plaint, the written statement was filed by the petitioner, this objection was not raised in his written statement, no issue to this effect was framed, as against that the witness namely Gul Jamal did appear before the Court as witness and owned the notice, non-signing of the same is not fatal to the suit of the respondent, the notice was duly sent under registered covered acknowledgement due, the pre-emptor/ respondent had confirmed his intention to exercise the right of pre-emption in the notice, once a pre-paid properly addressed envelope had been delivered, under the Provision of 26 of the West Pakistan General Clauses Act, 1956, the same was presumed to have received the addressee in due course of mail. The respondent admitted the receipt of notice, the learned appellate Court rightly decreed the suit to this extent.
Reliance placed upon a case titled Rooh-ul-Quddus v. Muhammad Rang and 2 others reported as 2002 CLC 379.
8. In the instant case the respondent has produced sufficient evidence to establish that having gained the knowledge about the sale transaction through Aurangzeb he immediately declared his intention in the same sitting in the presence of Muhammad Ashraf, Aurangzeb to exercise his right of pre-emption in respect of the demised land and thereafter issued the Talbs in accordance with law. The mere fact that one of the vendee was issued original notice, whereas the remaining was served with Photostat copies, by itself, cannot be considered a good ground to dislodge the petitioner's claim, who is admittedly co-sharer in the suit property. It may be stated here that the vendee-defendants are real brothers and they reside in the same house. The issuance of photocopies of the notices does not appear to have affected their rights.
9. When a fact was not pleaded in the pleadings of a party, consequences laid down in a judgment of the august Supreme Court reported in a case titled Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCM R 336, reproduced as under:--
(c) Pleadings---Practice and procedure-No evidence can be led or looked in support a plea which had not been taken in pleadings.
10. As far as, the findings recorded by the learned appellate Court under Issue No.2 are concerned, the learned appellate Court has not expressly given findings regarding the period of limitation as was returned by the learned trial Court under Issue No.2 in its judgment, however, the learned appellate Court after setting aside the judgment and decree, passed by learned trial Court decreed the suit of the respondent, thus, in view of the learned appellate Court, the suit was filed within the period of limitation. The view is also in accordance with law contained in section 31 of the N.-W.F.P. Pre-emption Act, which provides 120 days for filing the suit for pre-emption from the date:--
(a) of the registration of sale-deed; or
(b) from the attestation of mutation, if the same is made otherwise than through the registered asdeed; or
(c) on which the vendee takes the physical possession of the property, if the same is made, otherwise, than through the registered sale-deed or the mutation; or
(d) of knowledge by the preemptor, if the sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c).
11. Since, the mutation was attested on 18-12-2004 and suit filed on 7-4-2005, same was within time.
The learned trial Court, while deciding the issue of limitation misdirected itself as the unregistered sale agreement was scribed on 20-5-2004, when the sale transaction was effected in between the vendor and the respondent, but subsequently the sale mutation was attested, the agreement made earlier was also culminated into sale mutation, time will be considered to be reckoned from the date of attestation of mutation, therefore, the suit of the respondent was instituted well within time.
12. The learned appellate Court, while recording the findings under Issues Nos.3 and 4 held that the petitioner failed to prove the execution of sale-deed brought on record as Exh.DW.1/1, as one of the marginal witnesses of the sale-deed has not been produced, more so, the defendant did not produce stamp vendor, deed writer. The learned appellate court, while deciding the said issue legally erred in law that agreement to sell was not required to be proved by two attesting witnesses, if any one of the witnesses produced, it is sufficient compliance of law, therefore, the execution of deed on 20-5-2004 and entry of mutation on the same day, therefore, its execution cannot be doubted and be considered that he entered into possession of the suit property from the date of execution of the sale-deed as well as the date of entry of mutation i.e. 20-5-2004, thereafter, the petitioner has raised the construction in the suit property, the respondent has produced Azam Khan C Patwari Halqa as P.W.1, he categorically stated that in the suit property a pakka house is situated, it consists of four rooms. The plaintiff /respondent was examined as P.W.6, he has said in the following words:-- efILA6.;/-1; P.frK th:V2IJI{{URDU TEXT}} 12A. Since, the respondent had. Not denied that when construction work started by the petitioner was completed and his further reply that when the petitioner was raising the construction, he had not visited the suit land as he was not in the knowledge of construction, he admitted as correct that the residential house of the defendant/ petitioner situated in the suit property and he further stated that he has no knowledge, who is residing in the said house. It is in evidence that the distance in between the suit property and house of the respondent is one km. The above mentioned statement vividly amounts admission in the eye of law, as the witness has not denied the fact of construction of house, stated that he is not in the knowledge of the factum of construction, although in later part of his statement admitted the existing of house in the suit property. In this regard, reliance placed upon the judgment titled Qurban Hussain v. Mst. Bashir Begum and others reported in PLD 1986 SC (AJK) 109 the relevant para-10 at page-6 reproduced as follows:-- presumption would be that the other party has admitted the same. However, in a judgment reported as 2001 SCM R 1700, the dictum laid down that when a statement not cross-examined, it amounts to an admission in terms of Article-31 of Qanune-Shahadat. The statement of respondent corroborated by Khanan Khan DW.2, foregoing aspect of the case had not been considered by the learned appellate Court and rendered the findings without there being valid and solid ground to reject the plea of construction of the house over the suit property prior to issuing the notice Talb-e- Ishhad, in such circumstances the petitioner in terms of section 21 of the N.-W.F.P. Pre-emption Act, 1987 entitled for the improvements made as stated above, D the same section is reproduced for convenience sake as under:-- "The law is also now well set that denial of knowledge of a particular fact is not a denial of the fact, and has not the effect of putting the fact in issue. We are fortified in our view in Samrathmal v.
Union of India (1959) M (305)".
13. Rehman's Ullah, petitioner examined as DW.1, stated that after the sale transaction made on 20- 5-2004 vide sale-deed No.718, over the suit property a house was constructed and residing therein and he further stated that after 7 months of the, completion of house he had received the notice of Talb-e-Ishhad and there is no cross-examination in respect of the said statement of the petitioner, even in cross-examination, he stated that after purchase of the suit property within 10 days the foundations laid down. When a portion of statement or statement of a witness not cross-examined, such portion of statement or the statement made by witness, the S.21---Improvements made by the vendee---Where a vendee has made any improvements in the immovable property before Talb-e-Ishhad is made by the pre-emptor under subsection (3) of section 13, the vendee shall be entitled to the cost of such improvements.
14. The petitioner had claimed in paragraphs 4 and 7 of the written statement in the following words:- Vdio,...:;;.1).1)20-5-2004 {{URDU TEXT}}L Alc _4 e2t:':(3:91)1-74,)iilliff 718/20-5-2004...At 61.* (cd)..e.01 ()I) JA V):fici ii11211,T.
MY' 412/18-12-2004 ai=-L:rid36 {{URDU TEXT}}Litri:)./...);( 18-12-2004 _cr_/1:4>K2-rjy;
15. It is quite clear in the above statement that the petitioner had made the improvements on the suit property and in case of decree entitled for the same, but on account of non-framing of issues neither any evidence was produced nor the value of the improvements assessed by the learned trial Court. Although, Issue No.4 framed as "whether the defendant had raised construction on the suit property". As per the grounds agitated in written statement by' the petitioner, the learned trial Court was required under the law to recast the issue as below:-- "whether the defendant had raised construction on the suit property, if so, how much expenses incurred by the defendant in making the improvements and to what extent the defendant is entitled for."
16. It was the prime duty of the learned trial Court to frame the issue properly and in accordance with the pleadings of the parties, non-framing of issues is an illegality amounting to exercise of jurisdiction illegally, or with material irregularity. Reliance placed to a case titled Muhammad Bashir v. Muhammad Hussain and 16 others, reported as 2009 SCM R 1256, the relevant paragraphs 8 and 9 reproduced as under:-- "We have gone through the law G cited above and find that land vesting in the Provincial Government was not preempt able in view of notification number 74 dated 12-6-1944, relating to Bahawalpur State. Learned counsel for the respondents argued that this question was though raised before this Court. In reply, learned counsel for the appellant referred to The Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1, wherein it was held "on the filing of an appeal the entire matter becomes re-open and sub- judice and has to be decided in accordance with law prevalent". In this view of the matter even if a ground raised and not pressed which relates to fundamental question can be considered by the Court. Reference can conveniently be made to Abdul Hameed and others v. Muzamil Haq and others 2005 SCM R 895".
"The objection raised by the appellant-defendant in the written statement regarding exemption from pre-emption of the suit-land was not put to an issue. Appellant was seriously prejudiced in not being able to produce evidence to prove the assertion".
17. The failure to comply with the Provisions of Order XIV Rule 1, C.P.C. Amounts to material illegality and irregularity and illegal exercise of jurisdiction, the relevant portion of the ruling ibid reproduced as under:-- "The controversy was not put into an issue. Learned appellant's counsel has rightly referred to Mst.
Rasheeda Bibi and others v. Mukhtar,Ahmad and others 2008 SCM R 1384, wherein it was held that non framing of an issue is an illegality amounting to exercise of jurisdiction illegally or with material irregularity and the case was remitted back for framing of issue and recording of fresh evidence by the trial Court".
18. In view of the above discussion, this petition is allowed and set aside the findings under Issue No.4 made by the learned appellate Court, and remit the case back to the learned trial Court for deciding on newly framed issue, after granting an opportunity to both the parties to produce fresh evidence, as required in view of the framing of issue, if so desire, finding of the rest of issues made by the appellate court will remain intact..