1 The facts necessary for the disposal of this second appeal under Section 100, C.P.C. Are that Muhammad Ismail, appellant, filed a suit for possession through pre-emption claiming superior right of pre-emption being first cousin of the vendor. A.I Muhammad and others also brought a civil suit to pre-empt the same sale. Both these suits were consolidated. The learned trial Court after framing necessary issues and recording the evidence of the parties, dismissed the suit of rival pre- emptors, while the suit of the appellant was decreed vide consolidated judgment and decree dated 27th October, 1980. The rival pre---emptors did not agitate the matter any further. The vendees: respondents, However, filed an appeal which was accepted by the learned Additional District Judge vide judgment and decree dated 18th October, 1981 after setting aside the Bindings of the learned trial Court on issues Nos.1 and 6. These issues read as under: (1)Whether the plaintiff has not made up the deficiency of court-fee within time? If so its effect'?
(2)Whether the. Plaintiff has superior right of pre-emption?
The learned appellate Court was of the view that the plaintiff was under legal Obligation to have paid the court-fee at least on 1/2 of the aggregate not profits, Which was not paid and as such, the appellant-plaintiff had failed to pay the requisite court-fee. The not amount of the court fee payable was neither determined nor direction to pay the same was made. On issue No.6, it was held that, the right of pre-emption in the instant case is to be governed under Section 16 of the Punjab Pre-emption Act and the appellant who had claimed superior right of pre-emption being cousin of the vendor cannot be held to have the superior right of pre-emption qua respondents.
This finding was retuned on the basis that the property in dispute was an urban immovable property. The appellant then challenged the judgment and decree dated 18th October, 1981 by filing the present second appeal. The findings recorded by the learned Additional District Judge on issues Nos.1 and 6 are assailed.
2. Learned counsel for the appellant argued that firstly the plaint cannot be rejected on account of deficient court-fee without first determining the court-fee payable and providing an opportunity to make up the deficiency as determined and secondly, if the plaint is rejected under Order VII rule .11 C.P.C. Then the question of deciding the issues arising in the suit does not arise. There is force in this submission. The learned appellate Court after recording the conclusion that the court-fee payable was deficient, was duty bound to determine the court-fee payable and also to give the direction to the appellant to make up the deficiency in the court-fee by a specific date. In support of this view, reference may be made to Siddique Khan and others v. Abdul Shakur Khan and another (PLD 1984 S.C., 289).
3. The other important feature of the case is that the finding that property in dispute is urban immovable property has been returned by the learned lower appellate Court despite the fact that no such issue was framed at any stage of the proceedings either m the suit or in the appeal, though the preliminary objection as to the maintainability of the suit on the grounds that the land in dispute is not agricultural land and is otherwise situated within the limits of Municipality was taken in the written statement. The issue framed "whether the suit property is exempt from pre- emption"- obviously did not depict the aforenoted objections. None of the issues framed, it was not disputed, reflected these pleas taken by the respondent /defendant in the written statement.
4. Learned counsel for the respondents however argued that the parties were conscious of these pleas taken and it was because of this realization that the respondent in his statement deposed that the property, subject-matter of the suit, was situated within the municipal limits of Sheikhupura. He added that for this very purpose the question whether the property in suit is situated within Municipality of Sheikhupura was put in cross-examination to Ghulam Rasul PW.2.
Learned counsel further submitted that Jamabandi Ex.P6 as well as sale---deed Ex.P5 show that the land is situated within the municipal limits. The sale---deed Ex.P5 contains a recital to the effect that the land sold is situated within the municipal limits of Sheikhupura. The word "Qasbati" appears on the top of the copy of Jamabandi Ex.P6 produced by the appellant.
5. In view of above-noted submission, it appears necessary to examine the oral and documentary evidence on record for finding out whether the parties were conscious of the aforenoted objections and if not whether non-framing of the necessary issues pertaining to these objections has not caused material prejudice to any of the parties. It is well established that where the parties have led evidence in order to substantiate or rebut a certain plea taken in the pleadings, then mere non- framing of an issue in respect of that plea loses significance as the plea of prejudicing the case of the parties or any of them no E longer remains available. On the other hand, if necessary and proper issues are not framed at all and the parties or either of them is prejudiced, it will be a material irregularity (See The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 S.C. 82). With these principles in view, I have gone through the evidence on record.
Muhammad Ismail appeared as PW.1 and produced only one witness Ghulam Rasul PW.2. Nothing was stated by them about the nature of the land or its location either in examination-in-chief or in cross-examination except that Ghulam Rasul PW.2 in cross-examination stated that he does not know whether the land is situated within the municipal limits of Sheikhupura. The question asked apparently was with respect to the position prevailing at the time of the deposition. Nothing as such was asked as to the position of the land when the sale took place. Muhammad Hussain, defendant/vendee appeared as DW.1. In cross-examination he stated that land was near the Firing Range within the limits of Municipal Committee and that the land was not under cultivation since the establishment of Pakistan. He further I added that the land in dispute is not being cultivated as there is abadi all around and that adjacent to the land, in dispute there were factories, houses and Firing Range. It will be noted that ordinarily construction is not permitted near the Firing Range. This is in all the oral evidence on record. The documents relevant to the question are (i) statement of not profits Ex.P3 pertaining to Kharif 1974 to Rabi 1975 prepared on the basis that crops were grown on the land, (ii) copy of the sale-deed Ex.P5 containing the recital that the land sold is situated within the limits of Municipal Committee Sheikhupura, (iii) copy of Register Haqdaran Zamin Ex.P6, prepared on 8th June, 1975 wherein at the right top corner the word "qasbati" has been written. The usual entry in red ink that the land is in municipal limits, is however missing. The rival pre-emptors produced copy of Jamabandi EX.D1 pertaining to Khasra Nos.158 and 159. This copy does not contain the word "Qasbati" nor there is any entry showing the land to be situated within the limits of Municipal Committee. It is pertinent to note that the land in dispute falls in Khasra Nos. 157 and 159.
The vendees/respondents themselves filed a copy of Register Haqdaran Zamin, Ex.D2 pertaining to the land in dispute. Neither the word "Qasbati" appears in this copy nor the entry showing the land to be situated within the limits of Municipal Committee appears in this copy. Khasra Girdawaris Ex.D3 and Ex. D4 pertaining to Kharif 1964 to Rabi 1968, show that the land of both these Khasra numbers was "Banjar Qadeem".
6. The above survey of the evidence on record shows that the parties while producing the evidence were not conscious of the two preliminary objections taken in the written statement. In any case the appellant/plaintiff was not at all conscious of these objections as neither any oral nor any documentary evidence in this respect was produced by him. The defendant in his statement though stated that land in suit was situated within Municipal limits but that does not appear to be a conscious act. Had he been alive to the situation, he would have produced the relevant notification. Obviously oral assertion in this situation would not have been considered sufficient to discharge the onus of the issue, had it been framed. The obvious reason is that these two objections were not crystallized and highlighted by framing issues pertaining thereto. Primarily, it is the duty of the Court to frame necessary issues arising out of the pleadings of the parties. In this case proper issues were not framed. The prejudice caused is apparent as pertinent evidence has not produced by both the parties. This furnishes sufficient reason for remanding the case to the trial Court. The objections taken in the written statement gave rise to the following issues (i)Whether the land in dispute ceased to be agricultural land at the time sale? OPD.
(ii)Whether the land in dispute stands included within the municipal limits of Sheikhupura and the plaintiff as such is not entitled to pre-empt the same? OPD.
7. The not result of the above discussion is that the judgment and decree dated 18th October, 1981 passed by the learned Additional District Judge is set aside, the suit is remanded to the learned trial Court for, firstly, determining the court-fee payable and to provide an opportunity to the plaintiff to make up the C deficiency, if any, in the court-fee by a date to be fixed by the Court and to provide opportunity to the parties to lead evidence on the two additional issues as well as on issue No.6 and then to decide the suit in accordance with law. In the above terms, the appeal succeeds. The parties are left to bear their own costs.
H.B.T./M-1432/L Order accordingly