' This Civil Revision is directed against judgment dated 3-7-1984 of learned Additional District Judge passed in appeal maintaining judgment and decree dated 25-7-1981 dismissing the plaintiff's suit for possession by pre-emption.
2. Facts are that Ghulam Hassan, the owner of land measuring 3 Kanals 2 Marlas comprised in several Killa numbers of Square No.20, 59 and 84, through a Court decree dated 25-6-1976 transferred the same for an ostensible consideration of Rs.6,000 in favour of Muhammad Aslam s/o Hasham, respondent. Ghulam Ahmad, a brother of vendor Ghulam Hassan, pre-empted the sale through a civil suit instituted on 22-10-1980 in the court of Civil Judge, Mandi Bahaud Din. Right of pre-emption was claimed on the ground of being an heir, co-sharer and owner in Patti. Vendee resisted the suit. In his written statement, it was stated that the sale in his favour was protected on the ground of his being a tenant-in-occupation. Averments on facts made in the plaint were also denied. Principal defence was that since the vendee-defendant was a tenant in occupation of the land at the time of sale, therefore, pre-emption suit instituted against him was not maintainable.
3. On 10-1-1981, learned Civil Judge settled the following issues:--
(1) Whether the plaintiff has got the superior right of pre-emption as against the defendant- vendee? O.P.P.
(2) Whether the defendant is tenant over the suit land prior to this sale? O.P.D.
(3) Whether a sum of Rs.6,000 was fixed and actually paid in good faith as sale price? O.P.D.
(4) If issue No.3 is not proved then what was the market value of the suit land at the time of its sale?
O.P.Parties.
(5) Relief.
' The suit was then adjourned for the plaintiff's evidence. On 30-3-1981, learned counsel for the plaintiff tendered Khasra Girdawari Exh.P.1. copy of the decree-sheet Exh.P.2. and pedigree-table P.3. in evidence and closed the affirmative side of evidence reserving a right to produce plaintiff in affirmative as well as in rebuttal after the defendant's evidence. Defendant then apart from appearing as his own witness as D.W.2 produced Ghulam Rasool D.W.1. Copies of Khasra Girdawari Exh.D.1., D.2 were also produced in evidence. Plaintiff also appeared as witness in support of his own case. This was the entire evidence adduced by the parties.
4. Vide judgment and decree dated .25-7-1981 Raja Muhammad Shafiq Javaid, learned Civil Judge, Mandi Bahaud Din dismissed the pre-emption suit. Under Issues Nos.1 and 2 which were taken up for discussion together, it was found that the plaintiff was proved to be a collateral of the vendor.
On the other hand, vendee defendant was found to be in possession of the suit land as tenant. In this view of the matter it was found that the plaintiff collateral had no superior right qua the vendee a tenant in occupation of the land. Under issue No.3 it was found that a sum of Rs.6,000, the sale price, was fixed in good faith and actually paid to the vendor. Finding on issue No.4 was not recorded as it became infructuous.
5. Ghulam Ahmad plaintiff dissatisfied with the judgment of the trial Court, appealed to District Judge Gujrat. This Civil Appeal was entrusted for decision and disposal to learned Additional District Judge Gujrat. Vide order dated 3-7-1984, Civil appeal was dismissed. Learned Additional District Judge, after survey of evidence, under issues Nos.1 and 2 found that the vendee was in possession of 14 Marlas out of the land-in-dispute as tenant under the vendor and thus could resist the prior claim of the plaintiff to the extent of this piece of land only. As regards the remaining land of 2 Kanals and 8 Marlas, the plaintiff was found to have a superior right. Price was, conceded by Ghulam Ahmed appellant before the Court of appeal. After giving findings on the issues framed, learned Additional District Judge proceeded to observe:- "The learned counsel for the respondent argued that the impugned transaction took effect as a result of consent decree and for that reason the impugned sale could not be termed to be a sale and a suit for pre-emption was not competent. Reliance was pla ced on PLD 1984 Pesh.
94. In para. 2 of the plaint the appellant contended that the impugned transaction took effect as a result of decree dated 25-6-1976. Copy of decree in Exh.P.2. This document shows that the impugned transaction took place as a result of consent decree and, thus, relying on the judgment referred above the impugned transaction cannot be termed to be a sale. The learned counsel for the appellant failed to produce any judgment contrary to the above judgment. Thus, the impugned transaction not being a sale, the same is not pre-emptible and as such a suit for pre-emption was not competent. On this ground, the appeal is held to be without merit and the same is hereby dismissed, leaving the parties to bear their own costs".
' Aggrieved by the judgments passed by the learned Courts below dis missing pre-emption suit, the petitioner has filed present Civil revision.
6. I have heard learned counsel for the parties. Mr.Naveed Shehryar, Advocate, appeared in support of civil revision. Maulvi Ehsanul Haq defended the respondent. Learned counsel for the plaintiff/petitioner contended that the basis on which the Court of appeal proceeded to dismiss the suit, found no mention in the written statement Pre-emption suit was not resisted by the vendee on the ground that the transaction in dispute was not pre-emptible. In the absence of any objection in the written statement, issue raised on the point and without allowing the parties to adduce evidence in support of the nature of transaction, embodied in the consent decree, the point could not have been agitated or made the basis for dismissing the claim for pre-emption.
Trial Court had proceeded on the premises that the transaction was pre-emptible. Decision of learned Additional District Judge passed in appellate juris diction has sprung a surprise upon the plaintiff pre-emptor. Altogether a new case has been built for the vendee by the learned appellate Court, which he himself had not pleaded in the written statement. It was also submitted that the learned Additional District Judge has found as a fact that the vendee was in possession of the land measuring 14 Marlas only and as regards the rest of the land, measuring 2 Kanals and 8 Marlas, plaintiff had a superior right to pre-empt. On the basis of this finding, the Court of appeal should have proceeded to pass a decree for possession by pre-emption in respect of the land measuring 2 Kanals and 8 Marlas in dispute on payment of proportionate price. Instead the Court on altogether untenable grounds proceeded to dismiss the suit. Mr.Ehsanul Haq, learned counsel for the respondent however contended that the suit for possession on the basis of pre-emptive rights was clearly barred by time under section 30 of the Punjab Pre-emption Act, 1913, inasmuch as possession was taken under a Court decree dated 25-6-1976, more than a year preceding the institution of claim for pre-emption in civil Court. In order to substantiate his contention, in regard to transfer of possession of the land, he referred to the entries of Khasra Girdawari Exhs. P.1, D,1 and D.2. It was contended that though the bar of limitation was not pleaded in the written statement either expressly or impliedly yet when the entire evidence was available on record then it became the duty of the Court to look into the question of limitation by itself and decide whether claim presented in Court suffered on account of limitation. Reliance was placed on section 3 of the Limitation Act and Narasingha Bana Goswami v. Prolhodman Tevari 47 Indian Cases 25, Dulo v.
Muhammad Nathu and another 44 Indian Cases 251; K.S.Agha Mir Ahmad Shah and others v.
K.S.Agha Mir Yaqoob Shah and others PLD 1957 (W.P.) Kar, 258 to contend that the question of limitation though neither raised in the trial Court nor in the grounds of appeal may be urged at the hearing of the appeal for the first time being a pure question of law. Since the entire evidence necessary for decision on the question of limitation was already on record, the Court in proper exercise of its jurisdiction could take notice of the plea raised, it being a pure question of law.
However, it was conceded that the vendee was in possession of land measuring 14 Marlas only. This part of the finding recorded by learned Additional District Judge in order dated 30-7-1984 thus was accepted by the vendee. Right of pre-emption as found by learned Additional District Judge, qua land measuring 2 Kanals and 8 Marlas was also not questioned by learned counsel for the respondent. Price as stated as had been admitted.
7. Suit for pre-emption on the basis of consent decree was instituted on 22-10-1980. Defendant in the written statement did not plead bar of limitation. In fact the sole defence qua the right of pre- emption was his occupation of the .land as non-occupancy tenant. This plea finds mention in preliminary objection No.l. In para. 3 of the written statement, while denying the superior right of pre-emption, the defendant stated that he was in possession of the land in dispute as non- occupancy tenant. It was not pleaded in the written statement as to when the sale was made or physical possession under the sale was transferred to the vendee by the vendor providing a clear notice to the would-be pre-emptors. On the other hand, the defence was that the land was already in possession of the defendant vendee as tenant. Such being the pleading, there could be no question regarding transfer of physical possession of the land under the sale. Nonetheless, the defendant's counsel insisted that the plea of limitation now being raised be considered on its own merits though it be contrary to the stand taken in the written statement. I am afraid, the contention has no force. Question of limitation could not doubt be raised, had the facts necessary for its decision been brought on file by the parties. In the instant case the defendant has not said a word about the date of sale and the transfer of physical possession of the land whole or in part under the sale. On the other hand, the plea was that he was already in possession as tenant. Plaintiff-pre- emptor was not a party to the consent decree. Naturally he could not be burdened with the knowledge of consent decree. Since physical possession of the land whole or in part was not transferred on site which could have possibly served as a notice to the would-be pre-emptors, it cannot be said that in the absence of such evidence, the question of limitation could be decided, moreso, when it has not been raised before the trial Court or the Court of appeal. It is absolutely a new point which cannot be allowed to be agitated in civil revision. Even in his statement, the defendant vendee did not utter a word about bar of limitation. Supreme Court of Pakistan in case Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68 observed:- "No doubt one trend in old authority was that every point relatable to limitation could be urged in the higher forum even if not pressed earlier but this Court finally resolved the controversy in Khairati and 4 others v. Aleem-ud-Din and another PLD 1973 SC 295. The ratio of this decision is that although it would be necessary for the appellate Court (here the High Court) to examine whether the proceedings instituted before it are within limitation, it will not be under any legal obligation to do so if the plea of limitation related to the institution of the suit, proceed ings before the trial Court. Learned counsel tried to distinguish this authority on the ground that it applies only when no appeal/revision was filed by the party (relying on the point of limitation) and not when the point is not pressed at the time of the argument. The distinction is too technical to be given any importance."
Question of limitation now raised, in the absence of an iota of evidence in support of transfer of physical possession cannot be successfully allowed to be urged by learned counsel for the vendees/respondents. During all these .years, when the controversy remained pending before the two Courts below, no step was taken to amend the written statement and raise the plea in support of bar of limitation. It is too late in the day to urge this point. Learned counsel also conceded that the point on which learned, Additional District Judge had proceeded to dismiss the suit, qua the nature of transaction was not pleaded in the written statement nor was it raised in issues before the trial Court. In the absence of specific pleadings, issue and the necessary evidence in support thereof, the point could not be raised in the Court of appeal. Both the points i.e. Bar of limitation and the nature of transaction cannot be allowed to be raised.
8. On the evidence present on record, right to pre-empt the land measuring 2 Kanals 8 Marlas stands proved and admitted also. Price as noted above has been admitted by the pre-emptor.
When right t. pre-empt stands proved and price admitted, next question arises whether the case be remanded to the Court of appeal for determining the price payable subject to which the suit could be decreed. Mr.Naveed Shehryar, learned counsel for the petitioner/plaintiff has stated that in order t avoid remand and further prolongation of the controversy, petitioner was prepared to pay a sum of Rs.6,000 for land measuring 2 KanalsC and 8 Manias over which his superior right of pre-emption stood fully established. In view of the statement so made, remand becomes un - necessary. Civil revision is allowed. The judgments and decrees passed by the Courts below dismissing the pre-emption suit instituted by the plaintiff/petitioner are set aside. Plaintiff's suit for 'possession by pre-emption is decreed to the extent of land measuring 2 Kanals 8 Marlas subject to the payment/deposit of Rs.6,000 minus Zar-e-Panjum already in deposit in Court by or before 4-1- 1985, failing which his suit shall stand dismissed. Parties are directed to bear their own costs.