Brief facts in order to dispose of this civil revision are that Muhammad Shah respondent-plaintiff filed a suit for possession through pre-emption against the present petitioner-defendant to pre- empt the sole of land measuring 50 kanals 1 marla situated in the revenue estate of Mauza Shall Syedan, Tehsil Fateh Jang District Attock, subject matter of Mutation No. 864 dated 30.10.1995 mentioning the facts the plaint that one Shah Sawarisold his land above mentioned to petitioner- defendant in consideration of Rs. 30,000/-. However, in order to defeat the right of pre-emption of the petitioner-defendant its fictitious price was shown as Rs. 1,30,000/-; that sale was kept secret and no prior notice whatsoever was issued nor it was brought into the knowledge of the petitioner- defendant; that on 19.11.1995 when petitioner-defendant came to know about the sale he at the same time in the presence of witnesses performed Talb-i-Muwathebat showing his intention to preempt the sale having preferential right as "Shafi Shareek", "Shafi Khaleet" and "Shafi Jaar"; that subsequently petitioner-defendant on 21.11.1995 sent notice of Talb-i-Ishhad. Petitioner-defendant claimed the pre-emption of the land on the basis of superior right being "Shafi Shareek", "Shafi Khaleet" and "Shafi Jaar". Suit was resisted by the petitioner-defendant by filing his written statement, wherein he raised three preliminary objections about the maintainability of the suit on the ground of estoppal, non-performance of Talb-i-Wuwathebat as well as filing of the suit with malafide. On factual side, sale was admitted, however, it was agitated that sale price was paid with bonafide, that petitioner-plaintiff was in the knowledge of the sale and all the other assertions were denied by the petitioner-defendant Out of the pleadings of the parties learned trial Court framed the following issues:--
1. Whether the plaintiff has superior right of pre-emption against the defendant? OPP
2. Whether the plaintiff has made Talbs as required under the Punjab Pre-emption Act ? OPP
3. Whether a sum of Rs. 1,30,000/- was fixed in good faith and was actually paid as price of the suit land? OPD
4. What was the market value of the suit land at the time of sale, if Issue No. 3 is not proved?
OPParties.
5. Whether the defendant made expenses on payment of mutation fee and District Council fee etc.? If so, to what extent and with what effect?OPD
6. Whether the plaintiff is estopped by his words and conduct to bring the suit? OPD
7. Whether the suit is vexatious and defendant is entitled to recover special costs u/S. 35-A CP.C? If so, to what extent
8. Relief.
2. Parties were directed to lead their respective evidence. Respornient-plaintiff Muhammad Shah himself appeared as PW-1 and he examined Haider Shah son of Noor Shah and Hubdar Shah son of Haider Shah as PWs 2 & 3 respectively. Learned counsel for the respondent-plaintiff closed the evidence while getting exhibited copy of Jamabandi for the year 1990-1991 (Exh.P2), copy of Mutation No. 864 (Exh.P4) and postal receipt etc. as Exh.P4 and Exh.P5.
3. On the other hand, petitioner-defendant himself appeared as DW-1 and his learned counsel closed the evidence. Learned trial Court after hearing the parties vide judgment & decree dated 22.9.2001 partially decreed the suit of the respondent-plaintiff and property in question was directed to be shared by the parties equally with the direction to deposit the half sale price of Rs.
65,000/- after deducting Zar-e-Shuffa, if already deposited in Court and Rs. 7,000/- as incidental charges. Feeling aggrieved parties preferred two separate appeals, which were heard and accepted by the learned ADJ vide judgment dated 10.6.2002 whereby he remanded back the matter to the learned trial Coutt with the direction to decide the same after giving afresh findings upon Issue No. 1 while determining the superior right khewatwise. The learned trial Court vide judgment & decree dated 22.7.2002 held the respondent-plaintiff entitled to the extent of 37 Kanals 5 marlas. Feeling aggrieved the parties again filed two separate appeals against the judgment & decree dated 22.7.2002 which were heard and decided by the learned ADJ vide judgment & decree dated 2.9.2002 whereby he upheld the judgment dated 22.7.2002. Feeling aggrieved petitioner- defendant has preferred this civil revision.
4. Learned counsel for the petitioner-defendant contends that both the learned Courts below did not take into consideration the statement of PW-3 Hubdar Shah who during cross-examination admitted that on third day of the sale petitioner-defendant got the possession and plaintiff- respondent at that time when he was ploughing the field reached there whereas in plaint as well as in the statement it was stated by the plaintiff that he came to know about the factum of sale on 19.11.1995 at 8:00 am when he was told by Haider Shah, thus, Talbe-Muwathebat was not proved and suit was liable to be dismissed on this score. Further adds that plaintiff-respondent's witnesses contradicted each other in respect of performance of Talb-e-Muwathebat.
5. Learned counsel for the respondent-plaintiff while referring the judgment dated 10.6.2002 argued that while maintaining the findings of the learned trial Court vide judgment & decree dated 22.9.2001 and while maintaining the findings on rest of the issues while setting aside the findings on Issue No. 1 remanded to the learned trial Court to dispose of this issue afresh; that the learned trial Court decided Issue No. 1 in favour of the plaintiff while maintaining the findings on remaining issues as earlier passed according to the earlier judgment and decreed the suit. Further argued that the impugned judgment & decree dated 2.9.2002 passed by learned ADJ whereby it was specifically observed that in the earlier round of litigation learned ADJ while maintaining the findings of learned trial Court on Issues No. 2 to 7 remanded the matter to the learned trial Court to dispose of the Issue No. 1 afresh thus the findings on Issues No. 2 to 7 have attained finality which was not challenged by the petitioner-defendant. While referring Section 105(2) C.P.0 argued that as earlier findings of order of remand were not challenged, therefore, subsequently at this stage petitioner is precluded from challenging the same.
6. I have considered the arguments advanced by learned counsel for the parties and have gone through the file.
7. Admittedly, learned trial Court vide judgment & decree dated 22.9.2001 decreed the suit while deciding all the issues and while upholding the findings on remaining issues except Issue No. 1 which relates to superior right of pre-emption it was remanded to the learned trial Court to decide this issue afresh and pass the judgment accordingly. The learned trial Court vide judgment & decree dated 22.7.2002 while deciding Issue No. 1 declared the vendee and vendor as co-sharers, decreed the suit and declared that they shall be entitled in equal share in the land in question.
Findings on remaining issues as already were upheld by the learned appellate Court, therefore, same findings were passed by the learned trial Court in post remand judgment & decree dated 22.7.2002. Appeal was filed by the petitioner-defendant and learned appellate Court vide impugned judgment & decree dated 2.9.2002 while taking into consideration earlier remand order in the light of Section 105(2) of C.P.0 decided Issue No. 1 in appeal and upheld the findings of the learned trial Court. It was observed by the learned First Appellate Court that in the light of earlier remand order passed by the learned appellate Court when the findings on remaining issues except Issue No. 1 were upheld and the petitioner-defendant did not challenge the same, therefore, it attained finality and now petitioner-defendant was precluded from challenging the same. If Section 105(2) C.P.0 is seen, it reads as under:--
105. Other orders.--(1) -------------------
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal there from, he shall thereafter be precluded from disputing its correctness.
By mere reading of Section 105(2) C.P.0 mentioned above it is clear that as earlier remand order was not challenged by the petitioner-defendant to the extent of remaining 'issues except Issue No. 1 and he did not file appeal, therefore, those findings cannot be challenged. Reference for that purpose can be seen in judgments cited as PLD 1970 SC 63 (Abdul Hakim and 2 others Vs. Saadullah Khan and 2 others) 1995 MLD 699 (Abdul Qadir and others Vs, Muhammad Arshad and others), 1996 MLD 553 (Syed Waheed Ahmad Vs, Niaz Muhammad), PLD 1974 Lahore 208 (Muhammad Hussain Vs. Fazal Haq and another), AIR 1972 SC 1612 (Sita Ram Goel Vs. Sukh Nandi Dayal and another) and 1991 MLD 1919 (Dr.Muhammad Shaukat Iqbal and others Vs. Muhammad Luqman Arshad). So far as, findings of the learned trial Court as well as learned appellate Court on Issue No. 1 are concerned, both the learned Courts have reached at a right conclusion as both petitioner as well as respondent are co-sharers, therefore, they had equal right against each other, therefore, they were rightly held entitled to half share each in the land subject matter of the suit.
Resultantly, this revision petition being without any substance is hereby dismissed with no order as costs.