This is a defendant's second appeal under section 100 of the C.P.C. from the decree of the learned Additional District Judge, Faisalabad, dated 13-3-1982, affirming the decision of the trial Court dated 28 -5-1978, whereby the suit for possession through pre-emption filed by the respondent against the appellant was decreed with costs subject to payment of Rs.1,65,000.
2. The first contention raised by learned counsel for the appellant in support of this appeal was that the suit of the respondent had not been properly valued for the purposes of court-fee and jurisdiction. This plea has, however, lost all significance, as pursuant to an order passed by this.
Court, the respondent got the statement of net profits prepared, according to which, the valuation of the suit for the purposes of court-fee and jurisdiction was determined as Rs.1,29,750. The respondent has since made up the deficiency in payment of court-fee.
3. Learned counsel for the appellant then contended that the trial of the suit stood vitiated, as no issue on the all important question as to whether the respondent had a superior right of pre- emption against the appellant was framed nor the parties were called upon to lead evidence on this aspect. The learned Additional District Judge repelled this contention by observing that in the written statement filed by the respondent, there was no denial about the superiority of the right of pre-emption of the appellant and it was, therefore, not necessary to frame any issue.
4. Learned counsel for the appellant, however, submitted that the view taken by the learned Additional District Judge was based upon misreading of the written statement, in which the appellant had specifically denied that the respondent had a pre-emptory right as against him. This contention of the learned counsel is not correct. In para 2 of the plaint, it was specifically asserted by the respondent/plaintiff that he was the uncle and the collateral of the vendor and was also an owner in the estate. In the corresponding para of the written statement, the only denial of the appellant was that the respondent was not the uncle of the vendor. It was specifically admitted that the respondent was the collateral of the vendor according to the pedigreetable. There is also no denial of the averment in the plaint that the appellant was an owner in the estate. In these circumstances, the question of framing of any issue did not arise.
5. Be that as it may, it is conceded by learned counsel for the appellant that at no stage of the trial, any effort was made by the appellant to have any additional issue framed. He, however, submitted that it was the duty of the Court to frame proper issues and the failure of the respondent to raise any objection during the trial was of no consequence. In support of this submission, the learned counsel relied upon Mansab Ali v. Harman and 5 others (PLD 1993 Lahore 1).
6. I regret my inability to agree with the learned counsel on this score also. Although it is correct that it is the duty of the Court to frame proper issues arising out of the pleadings of the parties, but this does not in any manner relieve the parties of their obligations to ensure that proper issues are framed and to apply for framing of additional issues under Order 14, rule 5 of the C.P.C., if they feel dissatisfied with the issues already framed. A party, which does not raise any objection at the proper stage before the trial Court, cannot be heard to say or urge any such ground before the Appellate Court. A detailed discussion on the subject is not called for in view of the pronouncement of the Supreme Court in Mst. Sughra Bibi alias Mchran Bibi v. Asghar Khan and another (1988 SCMR 4) in which this aspect was disposed of by making following observations:-- "Similarly, we are unable to agree with the learned counsel that failure to frame one or other issue at the trial stage in the circumstances of this case would have the effect of nullifying the trial. Apart from the fact that the petitioner has not been prejudiced, it needs to be observed that it was also the duty of the parties to get proper issues framed, if they had any objection or suggestion regarding the framing of the issues."
A reference may also be made to another judgment of the Supreme Court in Mehr Din (Represented by his legal heirs) v. Dr. Bashir Ahmad Khan and 2 others (1985 SCMR 1) and of this Court in Muhammad Sadiq v. Muhammad Sadiq and others (1991 CLC 1460).
7. Learned counsel for the appellant then attempted to argue that the suit was bad for partial pre- emption. He, however, had to concede that this plea was not raised either in the written statement or at any stage before the trial Court or not even before the lower Appellate Court. It is, therefore, too late in the day to raise any such objection. The learned counsel, however, relying upon Muhammad v. Raz Gul (PLD 1972 Peshawar 146), urged that the question being primarily one of law can be raised in this second appeal. The objection as to the suit being bad for partial pre-emption is not a pure question of law but is dependent upon facts requiring inquiry. It should have been raised in the written statement so that an issue could be framed and evidence led. Furthermore, when asked to explain as to how the suit was bad for partial pre--emption, the learned counsel submitted that Dhari and the right of irrigation sold alongwith the land vide sale-deed Exh.Pl have not been pre-empted. This argument of the learned counsel has again not impressed me. It was not necessary to specifically ask for a decree in respect of incidental and ancillary rights when it was clear that that transaction as a whole was being pre-empted.
8. In the last, learned counsel for the appellant challenged the findings of the Courts below on issue No.2 and argued that as it stands proved that the respondent was present at the time when the sale was made and he was, as such, estopped by his conduct to file the suit. Although the concurrent findings of both the Courts below are against the appellant, but even if it be assumed that the respondent was present at the time when the bargain was struck, his presence by itself is hardly sufficient to prove waiver or estoppel. If any authority is needed, reference may be made to Muhammad Azam Khan and others v. Rehmat Ali and others (PLD 1993 Lahore 836) and Muhammad Amin v. Maqbool (PLD 1990 Lahore 397).
For these reasons, this appeal is dismissed with no order as to costs.