This Regular Second Appeal calls in question the judgment,/decree, dated the 12th of June, 1988, of the learned District Judge, Sialkot, whereby the respondents-vendees' appeal was accepted and the appellant-pre-emptor's suit was dismissed.
2. The suit for pre-emption was decreed by the trial Court on the 2nd of September, 1975, for the first time. The learned District Judge reversed the decree vide his judgment, dated the 14th of January, 1977, on the ground that the court-fee had not been paid in time. R.SA. No.85 of 1977 preferred from his decree was accepted on the 19th of May, 1985, and the case was remanded to the trial Court for fresh decision holding that non-payment of court-fee did not suffice to hit the suit by limitation. In the second round, the trial Court again decreed the suit on the 19th of October, 1987, but the learned District Judge in the impugned judgment accepted the appeal and dismissed the suit applying the ratio of the case reported as Sardar A.I etc. v. Muhammad A.I etc. PLD 1988 SC
287. In his view, Shariat applied to the suit and it could not be sustained.
3. Aggrieved by this decision, the pre-emptor preferred the present R.S.A,
4. It was claimed that answer to questions Nos. 6 and 7 posed in the said case squarely covered the case in hand and that the appellant could ask for restoration of the decree which once was passed in his favour on the 2nd of September, 1975, that is much before the crucial date.
Apparently the contention seem to be well-placed because the decree once passed in favour of the appellant would clinch the matter in his favour once for all. However, Ch. Khurshid Ahmad, Advocate for the opposite side laid considerable stress in urging that the said decree was, in fact, no decree in the eye of law inasmuch as it was passed without framing a specific issue about the appellant's claim of better right of pre- A emption which was controverted in the written statement, and additionally without affording him an opportunity to disprove his qualification. He referred to Order XIV, rule 1 as also Order XVIII, rule 2, C.P.C., pointing out that in a pre---emption case the most material point to be urged was the better right of pre---emption and that it needed a specific issue so that the parties could lead evidence for and against. According to ham, without having put such a material proposition into a formal issue, there was failure on the part of the trial Court to observe the dictates of those provisions and hence any decree passed by ignoring them was bad in law. Keeping these features in view, he drew attention to the same case of Sardar A.I etc. At page 345 wherein, according to his reading it was always open to a Court to determine any fresh situation by applying the rules evolved therein. He pressed that the decree, dated the 2nd of September, 1975, passed by the trial Court in the first round, being not a decree as contemplated by its definition contained in section 2(2), C.P,C., was as if non-existent and that passing fresh decree by the trial Court in the second round on the 19th of October, 1987, obviously after the crucial date could not possibly be defended in terms of the answers to questions Nos. 6 and 7 ibid.
5. On the other hand, Rana Nasrullah Khan, Advocate for the appellant submitted that the point of his right of pre-emotion had never been in controversy at all. He drew attention to the discussion made on issue No.1 by the trial Court in its judgment, dated the 2nd of September, 1975, where reliance wax placed upon the documents (Exhs. P.1 and P.2) to hold that he was owner in the estate Apparently the respondents then focussed attention only on the point of estoppel rather than the appellants better right. Even in their appeal they did not raise it, in that the learned District Judge in para. 3 of his judgment, dated the 14th of January, 1977, clearly observed that they "did not challenge superior right of pre-emption of the pre-emptor which is otherwise proved from Exh. P.1 and Exh, P.2". This observation was an important indication of the attitude of the respondents, They did not press the objection in the First Appeal and for this simple reason, could not be permitted to agitate it in the Second Appeal. In Mst. Fauzia Parveen v. Mst, Sahib Khatoon etc. 1988 SCM R 552 and Abdul Ghafoor v. Deputy Inspector-General of Police etc, 1988 SCM R 803 the rule propounded I was that if a point was not canvassed earlier, it could not be taken up at a higher , stage. It is idle now to reassert the point,
6. Apart from this aspect, I have hesitation to accept the contention that the decree, dated the 2nd of September, 1975, was not a decree in the eye of law. I would not go that far. Framing an issue was a formality which may, in a given situation, be even overlooked. At the trial, the appellant was vigilant enough to have tendered documents like Exhs. P.1 and P.2 to establish his ownership in the estate. By nature of the suit, he was supposed it) have led evidence oil the point, and he did.
Correspondingly the respondents should have been careful in meeting it by producing evidence m a like manner. What they looked more worried about was the question of improvements. Their evidence was closed by the trial Court on that point alone and the same was, of course, set aside in appeal with a view to help them produce evidence thereon after remand. The adjudication made by the trial Court in its judgment dated the 2nd of September, 1975, was clearly a decree" inasmuch as it conclusively determined the parties' rights in regard to the pre-emotion. It was quite pragmatic, in that no objection was raised to the issues as framed, nor was any new one claimed, nor were the documents Exhs. P.1 and P.2 sought to be excluded on the ground that they related to no specific issue, And to put premium on all these omissions, the finding recorded by the trial Court was not assailed in appeal. Rather it was accepted. The corollary was that it stood admitted, and anything admitted need not be proved. Article 113 of the Qanun-e-Shahadat, 1984, so provides. Such an "adjudication" obviously transcended all possible objections and would not be any the less judicial determination merely because no specific issue was framed thereabout. In Sadiq Hussain etc. v. Ghulam Rasool 1986 SCM R 322 failure to raise objection at the earliest, even on a point of law like limitation was held material to preclude the party concerned from raising it before a higher forum. On the parity of reasoning, absence of an issue not agitated earlier could not be raked up at this stage. The decree, dated the 2nd of September, 1975, emerges to be quite unassailable. As a consequence answers to questions Nos. 6 and 7 referred to above would be attracted. Shariat will not apply to the case. The lower appellate Court wrongly held otherwise and its order cannot be sustained. The R.S.A. Is accepted, the impugned judgment/decree are set aside, and the case is remanded to the learned District Judge, Sialkot, for fresh decision of appeal on merits. Parties shall appear before him on the 9th of April, 1989. The record be sent to him well, in time. No order as to costs.
H.B.T./T-61/L