1. MUHAMMAD HALEEM, C.J.--This appeal, by leave, arises from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 26th November, 1984, by which Regular Second Appeal No. 173 of 1972 was dismissed.
2. Leave to appeal was granted to consider:-
(i) Whether the regular second appeal of the appellant pending in the High Court stood abated by virtue of clause (c) of section 2-A inserted by the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983; and
(ii) Whether the failure on the part of Mst. Lalan to raise the plea before the High Court that her regular second appeal stood abated in the context of the amendment was not a waiver of the above plea by her.
3. The dispute in this appeal relates to an area of 7 Marlas of land situate in Chak Bazeed, Tehsil Chakwal. This land was a part of holding of 90 Kanals of Fateh Muhammad, the father of the appellant, who died without any male issue on 12th of March, 1944. However, before his demise, he gifted 90 Kanals in favour of the appellant on 17th of April, 1940. Sahib and Noor Muhammad, his collaterals, resented this gift, and a dispute arose whereupon a compromise was entered into between Mst. Wan on the one hand and Sahib and Noor Muhammad on the other, whereby she agreed to surrender 27 Kanals and 7 Marlas of land in their favour. This agreement was not acted upon and she continued to remain in possession thereof. The respondents, Sahib and Noor Muhammad, who are now represented by their legal representatives, thereupon filed a suit for possession on the basis of this agreement on 10th of December, 1941.
4. The trial Court after recording the statements of the parties passed a decree on 14th of November, 1942, incorporating their compromise to the effect that the decree shall not be executed so long as donor Fateh Muhammad or his wife Imam Bibi were alive provided Rs.90 were deposited by the donor or Mst. Lalan within four months. Again Fateh Muhammad executed a will on 14th of February.
5. 1944, in favour of the appellant bequeathing his entire lands in her favour and a mutation on the basis of the will was attested on 5th of April, 1944. Imam Bibi survived her husband Fateh Muhammad and died in 1968. The respondents thereafter filed a suit for possession of the disputed land measuring 27 Kanals and 7 Marlas. The suit was decreed by the trial Court on 12th of January, 1971, and the first appeal failed as it was also dismissed on 12th January, 1972. The regular second appeal also met the same fate.
6. The second suit was based on the compromise decree, dated 14th of January, 1942. It was specifically averred that the decree was alive as Fateh Muhammad had deposited Rs.90. The relief claimed was for possession of the disputed land according to the tenor of the decree which was being denied by the appellant. The appellant, however, resisted the suit on the ground that she was the owner of the entire property under the will of her father and that in the alternative if the respondents were treated as owners under that decree nonetheless she had perfected her title over the disputed land by adverse possession extending for over 12 years. Both these contentions were repelled by the trial Court and the first appellate Court. Before the High Court only two contentions were raised. The first was that there was no evidence to conclude that Fateh Muhammad or Mst. Lalan deposited Rs.90 in terms of the compromise decree, dated 14th January, 1942, so as to make it effective and confer ownership on the respondents with the result that the second suit filed on 3rd of September, 1968, was barred by time and 'for that reason Mst. Lalan had become owner by adverse possession for more than 12 years'. The second contention was that in the face of the decree, dated 14th of January, 1942, the second suit was incompetent as, in law, the respondents should have filed an application for the execution of the decree.
7. The High Court held that the plea of adverse possession was not as the respondents were co- sharers and in the absence of their ouster, which had to be specifically pleaded and proved, this plea should not be pressed into service. As regards the non-payment of Rs.90 no issue was framed as the denial was merely evasive and not specific as required by Order VIII, Rule 3 of the C.P.C. And, therefore, at no stage during the trial she showed her anxiety to get an issue framed. In her own statement she did not refer to any non-payment of this amount. In the circumstances, the appellant failed to disprove the non=payment of the amount. As to the second objection, the High Court agreed with the finding of the District Judge that this objection was not taken in her written statement despite the fact that the suit remained pending in the trial Court for more than two years and it was for the first time taken in the first appeal before the District Judge. As such the appellant must be regarded to have waived her objection under section 47, C.P.C. To the maintainability of the suit. The District Judge also relied on subsection (2) of section 47, C . P. C . To treat the suit as an execution proceeding in the absence of any objection as to limitation or jurisdiction and the moreso as the title of the respondents was not challenged under the decree.
8. Having held so, the High Court dismissed the appeal.
9. The learned counsel for the respondents contended that the first suit filed on 10th of December, 1944, was, in effect, for the specific performance of the agreement, dated 28th of November, 1940, which ended in a compromise decree on the basis of the statements of the parties and the second suit was, in effect, a proceeding for the execution of the compromise decree. Accordingly, from the nature and scope of the two suits, it was not a case, which fell under the purview of section 2-A so as to attract its clause (c). This contention has substance. A perusal of the decree shows that after the statements of the parties were recorded, a compromise decree was passed in terms thereof.
10. The statements are, however, not available. Anyhow the compromise decree in terms states that so long as Fateh Muhammad or his wife were alive they will continue to remain in possession provided Fateh Muhammad or Mst. Lalan deposit Rs.90 within four months and after the stated event the respondents will be entitled to obtain possession of the disputed land. The compromise decree being the only document, it is not possible to accept, as contended by the learned counsel for the appellant, that the contents of the agreement, dated 28th November, 1940, the plaint filed in the suit which ended in the compromise decree and so also the plaint in the suit under appeal should be taken into consideration to elicit the nature and scope of the litigation as this would amount to reading something in the decree which is not there. According to the accepted principle of construction, it is the tenor of the decree which alone has to be looked into and no material aliunde can be read to discern its terms. Therefore, it is difficult to hold that the decree which was sought to be executed fell within the ambit of section 2-A so as .To attract abatement within the meaning of clause (c).
11. As to the non-maintainability of the suit, we have no reason to differ with the findings of the Courts below, which have held it to be maintainable. No argument was addressed before us to challenge the treatment of the suit as an execution proceeding nor was any explanation t given as to why the competency of the suit was not challenged in the trial Court. Therefore, nothing now turns on it.
12. Lastly, leave was granted to consider whether her failure to raise the legal plea of abatement of execution proceeding in the -High Court, would disentitle her to raise it here. We are of the view that ordinarily a plea not raised in the High Court would not be entertained unless it is shown that such a plea is fundamental, that is, affects the maintainability of the suit and requires consideration in order to determine the scope and validity of the adjudication. A mere failure in that case to raise it in the High Court will not be fatal.
13. The appeal, therefore, fails and is dismissed, but with no order as to costs.