This regular second appeal was admitted for regular hearing to consider the character of the place where the suit property was situated i.e. To consider the point that Aminabad had a population of about three thousands and was inhabitated by persons carrying out various trades and accordingly Court should have come to the conclusion that Aminabad where the suit property was situated is a town. The second point taken up by the learned counsel for the appellant was that the disputed property was certainly not being used for the purpose of agriculture although it may have been assessed to land revenue and a part of a Khata. It was situated in a Bazar which is predominantly commercial area and also that the value of the structure was illegally refused by the Courts below although the structure was raised by the appellant.
2.The appeal was admitted on 16-11-1970 and on 1-12-1990. It was heard by my learned brother Mian Allah Nawaz, J. And the matter was sum up and my learned-brother observed that: "So he had a right to be heard on two questions mainly:--
(i) It was a shop situated in a village,
(ii) It was not pre-emptiable within the meaning of section 5 of the late Punjab Pre-emption Act."
The matter on that day was adjourned as part heard to 8-12-1990 and on 15-12-1992 my learned brother ordered that for personal reasons I would not like to hear this case. Be placed some other Bench. The matter was again heard and adjourned as part heard on 2-2-1992. On 4-12-1994 learned counsel for the appellant after arguing the case at some length requested for some time and my learned brother Ehsan-ul-Haq Chaudhry, J. On the request made by the learned counsel for the appellant for adjournment adjourned the same and ordered that the case be posted for 11- 12-1994 with a direction that if the appellant failed to argue the case on the next date of hearing the order of status quo shall be vacated. It was also noticed that this appeal is pending since 1970 while the sale sought to be pre-empted is dated 1-9-1968.
3. It was listed before me today and I noticed that a C.M. No. 1-C of 1994 was on the file which was filed by the learned counsel for the appellant wherein permission was sought to file additional grounds for the appeal. The grounds so taken were that the property sought to be pre-empted had assumed the character of urban immovable property as defined under section 3(3)(b) of Punjab Pre--emption Act, 1913; the plaintiff had never appeared in Court personally and the suit was filed through her husband, the general attorney which had no specific delegation of power to file pre- emption suit; the suit for pre-emption was a piratical right and it was not in the interest of justice to decree the suit for a partly amount although the respondent/plaintiff was given a right of getting the construction demolished and that the sale-deed had not been registered, the same amounted to agreement and thus the suit for pre-emption was premature.
4. Before proceeding to hear main appeal on merits I asked the learned counsel for the respondent if he wanted to file a reply to the said application but he submitted that he would argue the petition as it is.
5. The arguments on the petition heard. The file of the trial Court as also the Appellate Court is available before me. The pleas raised in the petition were not taken up either in the written statement or in the grounds of appeal before the trial Court except regarding the cost of construction.
6. The suit for pre-emption was instituted on 25-11-1968 and the sale on 26-10-1968 was sought to be pre-empted through the said suit. The defendant filed written statement on 19-12-1968. No objection regarding maintainability of the suit i.e. The same having been filed by a person not generally authorised in this behalf and or the suit being incompetent, was raised in the written statement. Issues were framed on the pleadings of the parties on 22-1-1969 and subsequently issue No.6-A was framed conjunctively having its relevance with Issue No.4 which was in the following words:-- "4. Whether a sum of Rs.765 had been fixed in good faith and actually paid as the sale price of the suit land? and Issue No.6-A reads as:-- "6-A. If Issue No.4 is not proved, what was the market value of the suit land at the time of sale?"
No application for amendment of the written statement was ever filed till the suit was decided on 13-3-1970. The appeal was filed by the present appellant on 22-4-1970 and during the said appeal no application for additional ground was filed. The grounds taken by the appellant in first appeal were the same as were taken in the memorandum of appeal filed in the High Court. The additional grounds sought to be agitated before the High Court were not mentioned in the written statement and I am constrained to remark that the application before this Court was filed after the appeal was argued on 1-12-1990 and then on 4-12-1994. This application was drafted on 8-12-1994 i.e. After the adjournment was requested during the course of arguments by the learned counsel for the appellant.
7. Petitioner's additional grounds cannot be allowed to be taken beyond the pleadings and issues framed by the trial Court. Though the legal grounds may be taken but those grounds which relate to the facts cannot be allowed to be raised for the first time at the stage of second appeal. It is a question of fact which could have been proved or disproved by taking a specific objection at the trial stage. Whether the general attorney had the authority to file the suit could have been questioned at the time of the filing of the written statement in December, 1968. As the sale sought to be pre-empted was of September, 1968 and had such an objection been taken the plaintiff could have moved the Court 'for rectification of defect in the plaint. The appellant therefore, cannot be allowed to raise this objection at this stage.
8. The question of disputed property being urban immovable property was also beyond the scope of the pleadings of the parties and the better statement of the respondent having been recorded by the trial Court exclude the scope of allowing the objection to be raised at this stage. The better statement was recorded on 30-11-1968 wherein the present appellant had admitted that Aminabad was neither a Town Committee nor a Municipal Committee and no octroi tax was payable and it came in the evidence subsequently that the Headquarter of Union Council was located in the village. Referring to Basic Democracy Ordinance, 1959 which was in force at that particular time it may be noted that the Union Councils were established in the rural area and the Town Committees and Municipal Committees were constituted in the urban area. The establishment of Headquarter of Union Councils, Hospitals and a School in the village shall not transform the village into the town unless so declared by the Board of Revenue or if so found by the Courts. The definition of village immovable property was given in subsection (2) of section 3 as under:--
(ii) village immovable property shall mean immovable property within the limits of a village other than agricultural land; There is no sufficient material on the file for the Court to hold the disputed property to be located within the limits of a town. It was a question of fact and both the Courts below are unanimous that the disputed property was village immovable property and therefore, there is no reason to allow the objection to be taken at this stage. The petitioner/appellant had not raised, this plea in the written statement and the evidence recorded to that effect was beyond the scope of pleadings and as it appears from the context of the evidence produced on record by the present appellant, he sought to prove that the disputed property was a shop and not agricultural land. He had rather taken up a specific plea that under section 5 of Punjab Pre-emption Act, 1913 no right of pre- emption existed in respect of the sale of the shop. This plea of change of character of the disputed property cannot be allowed at this stage.
9. The next plea was that no sale had taken place and it was merely an agreement to sell and the suit was premature. Reference to the pleadings of the parties may be made to decide this point.
The plaintiff had taken up the plea that the land was sold; possession was delivered and the agreement dated 1-9-1968 had also been executed. In the written statement the present appellant further in the written statement admitted the sale in the following words:-- The above admission of the present appellant in the written statement that there was a sale completed and he had taken over the possession clearly exclude any other plea which amounted to an altogether different defence as being set up through the new ground sought to be added.
10. As discussed above the petition has no force and the same is dismissed.
11. I have heard the learned counsel for the parties at length. The appeal was admitted on the points mentioned in the admitting note dated -16-11-1970 and learned counsel for the parties after hearing on 1-12-1990 had agreed to argue on the two points in the present appeal which were enumerated in para. 2 supra.
12. The trial Court had framed the following issues:--
(1) Whether the suit property is a shop and was a shop at the time of sale and as such a suit for pre-emption is not maintainable?
(2) Whether the plaintiff h8 waived her right of pre-emption?
(3) Whether the plaintiff has superior right of pre-emption as against the defendant?
(4) Whether a sum of Rs.765 had been fixed in good faith or actually paid as the sale price of the suit land?
(5) Whether the defendant had effected improvements on the suit property. If so, of what clause and with what effect?
(6) Whether, the valuation of the suit has been correctly assessed for the purpose of court-fee?
(6-A) If Issue No.4 is not proved, what was the market value of the suit land at the time of sale?
(7) Relief.
13. The trial Court had decided Issue No.1 and Issue No.2 against the defendant and Issue No.3 had been decided in favour of the plaintiff/respondent. Issue No.4 and Issue No.6-A were decided in favour of the defendant. Regarding issue No.5 trial Court assessed the improvement in the sum of Rs.2,037.25 and had held that the pre-emptor could not be forced to pay the cost of the improvement particularly when she did want to run the shop. As option was given to the plaintiff to deposit the cost of improvement in case she wanted the possession of the shop without any adverse inference in case of non-deposit, the defendant could get and debris removed. The plaintiff deposited the price as determined but did not deposit the amount assessed as the cost of improvement.
14. The Appellate Court taking notice of non-deposit of the cost of improvements however, held that the pre-emptor having not deposited the price of the superstructure shall not get the same in lieu of the assessed value of the construction. The appellant was given one month's time to remove the superstructure and in default thereof the plaintiff was held entitled to get them demolished through execution of decree in this behalf.
15. The Courts below recorded concurrent findings on all the issues and the legal points raised by the parties on all the issues. Rasool Bukhsh D.W.1 appearing on behalf. Of the present appellant had admitted that the disputed property was an open place at the time of sale. He also admitted that he had purchased 5 Marlas of land at the rate of Rs.300 per Marla from Mehdi Khan. The plaintiff and Muhammad Akram had instituted a suit to pre-empt the said sale. He had admitted that plaintiff and her brother Akram had superior right of pre-emption as against him. Munshi Abdul Sattar D.W.2 admitted that it was an open place at the time of sale and Muhammad Bukhsh defendant appellant had raised construction thereon. D.W.3 Allah Dawaya stated that he was a Lambardar and he had seen the disputed property which was situated in a Bazar; it was never under cultivation nor ever used for the agriculture purpose nor for purpose subservient to agriculture.
16. The appellant gave up Ghulam Qadir and Abdul Wahab the witnesses of improvement as mentioned in the application and requested for appointment of Local Commission to determine the cost of improvement. Syed Anwar Shah was appointed as Local Commissioner on 3-9-1969. He filed his report and appeared in Court as C.W.1. He assessed the value of construction at Rs.2,037.25.
None of the parties cross-examined the learned Local Commissioner. The defendant appeared in witness-box on 4-3-1970 as D.W.4. He himself stated that cost of construction was between Rs.2,000 and Rs.2,500. No objection to the report of Local Commissioner was filed nor he was cross- examined by the present appellant. There is no reason to interfere in the concurrent findings.
17. The appellant had filed an application for amendment under Order VI, Rule 17, C.P.C. On the day the judgment was to be pronounced by Appellate Court. The proposed amendment that the property had assumed the character of urban immovable property had been disallowed. The matter has however, been discussed threadbare supra and the said plea deserved no more attention.
18. Findings on Issue No.6 had been based on Exh.P.2, Exh.P.3 and Exh.P.4. The onus to prove issue was on defendant/appellant. He did not produce any evidence and as such had no reason to challenge the findings concurrently recorded.
19. There are concurrent findings of the Courts below and it was also admitted by the defendant himself that disputed property was an open place at the time of sale and construction of shop was raised thereafter and that he had received a notice from the plaintiff/respondent objecting to his construction which was Exh.P.5. The Court is to see the status of the property on the day of sale and not thereafter. There is no reason to interfere in the concurrent findings of the Courts below. The property to be pre-empted was not shop at the time of sale and therefore, right of pre-emption existed relating to the said property and exception as contained in section 5 of Punjab Pre-emption Act, 1913 to the general rule was not available to the appellant-defendant in the present case.
20. In view of the above this appeal has no force and the same is dismissed with no order as to costs.