' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against the judgment and decree passed by High Court on 8-11-1997, whereby the appeal filed by the appellants, herein, was dismissed.
' The precise facts giving rise to present appeal, are that land measuring 26 Kanals, 9 Marlas, comprising survey Nos. 185, 177, 281, 183, 279, 290, 253, 238, 407, 280, 263, 283, 145 situate in village Malote, Tehsil and District Bagh, transferred by one Muhammad.Zaman in favour of Gul 258, 205, 193, 195, , 345, 148, and 149, Azad Kashmir, was Hussain Khan of the same village for a consideration of Rs,3,000 vide registered sale- deed dated 12-5-1964. A suit for possession on the basis of prior right of purchase was filed by the plaintiff-respondent in the Court of Sub-Judge Bagh on 11-5-1965 on the ground of his being a co- sharer in the suit land as well as a 'Yak-Jaddi' of Muhammad Zaman, vendor, and as such had a preferential right of purchase as compared to the vendee. The suit was resisted by the opposite side. Necessary issues arising out of the pleadings of the parties and after hearing them, passed a decree in favour of the plaintiff-respondent which was unsuccessfully challenged through an appeal before the District Judge, Bagh. The second appeal filed before the High Court also failed vide the judgment and decree passed on 8-11-1997. It is the aforesaid judgment and decree which is the subject of present appeal before this Court.
3. Both the trial Court as well as the first appellate Court observed that plaintiff-respondent was a co-sharer in the suit land as such entitled to a decree for possession however, both of them failed to advert to the point with regard to the plaintiff's being 'Yak-Jaddi' of vendor.
4. The High Court mainly decreed the suit on the ground that plaintiff-respondent substantiated the ground of his being 'Yak-Jaddi' of the vendor which though was discussed by the trial Court but left out of consideration while passing the decree on its basis. Therefore the decree passed by the Court below and affirmed by District Judge sustains on the ground of plaintiff's being 'YakJaddi' of the vendor which is recognised by law as a ground for superior right of purchase as envisaged under section 14 of the Azad Jammu and Kashmir Right of Prior Purchase Act, holding the field at the relevant time i.e, before the amendment of section 14 through amended Right of Prior Purchase Act, 1993.
5. It was contended by Mr. Ghulam Mustafa Mughal, the learned counsel for the appellants, that the decree was passed in favour of plaintiff-respondent on 15-9-1993 by the trial Court which was affirmed in appeal by the District Judge Bagh on August 28, 1994. However the decree on the basis of plaintiff-respondent's being 'Yak-Jaddi' of vendor was passed by the High Court on 18-11-1997, but on 16th of March, 1993, the amended Act of Right of Prior Purchase, 1993, had come into existence, which does not recognise a ' YakJaddi' having a superior right of purchase. It was also contended by the learned counsel that it was enjoined upon the plaintiff-respondent to prove the existence of his superior right at three stages i.e, at the time of sale, at the time of institution of suit and at the time of decree of the trial Court but the superior right of the plaintiff-respondent was not subsisting at the time of the decree of trial Court. It was also pressed into service by the learned counsel for the appellants the plaintiff-respondent did not deposit the decretal amount in full as directed by the trial Court therefore the suit of plaintiff-respondent stood dismissed automatically as the decree for pre-emption in favour of plaintiff-respondent was conditional, but all the Courts failed to attend to this moot point.
6. In reply Raja Muhammad Yunus Tahir, the learned counsel for the respondent, strenuously controverted the arguments raised by the learned counsel for the appellants. The learned counsel pressed into service the submission that plaintiff-respondent filed a suit claiming his preferential right as compared to the vendee on the basis of two grounds namely; (i) that he was a co-sharer in the suit land and (ii) that he was Yak-Jaddi of the vendor and as such had a preferential right.
The trial Court as well as the District Judge passed the decree for possession in favour of plaintiff- respondent of his being co-sharer with the vendor in the suit land but the High Court formed the view that plaintiff-respondent could not establish the plea of his being a co-sharer with the vendor as the Jamabandis, annexed with the plaint, were much of a prior period and were not relevant for consideration when the sale-deed was executed. The learned counsel submitted that all the same the High Court was not barred from taking into 'consideration the other plea raised by the plaintiff provided the same was established from the material brought on record. The learned counsel submitted that sale-deed in the present case was executed on 12-5-1964, and the suit was brought on 11-5-1965, as such the cause of action arose to the plaintiff by the execution of the sale-deed.
The amended law of Right of Prior Purchase Act came into existence on 16th of March, 1993, though this law was given retrospective effect by reducing the period of filing pre-emption suits from 1 year to 120 days. However before coming into force of the amended law the suit of the plaintiff was pending and even the decree had been granted in favour of plaintiff-respondent by the trial Court on 15-9-1993. The learned counsel strenuously contended that the Courts below as well as the High Court committed no illegality in decreeing the suit filed by the plaintiff-respondent.
7. As regards the objection raised by the learned counsel for the appellant that as directed by the trial Court the plaintiff-respondent has not deposited the decrial amount in full therefore, the suit of the plaintiff stood dismissed for non-compliance of the order of the Court. The learned counsel contended that the total decrial amount has been deposited by the plaintiff-respondent. As a matter of fact the confusion arose when the office did not calculate the amount of Rs,600 which was deposited earlier as 1/5th of the consideration amount vide the order of the Court. The remaining amount of Rs,7,175.50 was deposited later on thus in accordance with the order of the trial Court the total amount of Rs,7,775.50 as directed by the Court has been deposited so the contention raised by the learned counsel for the appellant is mis-conceived.
' After hearing the respective contentions of the learned counsel for the parties and perusal of record, it may be stated that the decree on the basis of Right of Prior Purchase was passed by the trial Court in favour of pre-emptor-respondent as being a co-sharer in the suit land. The finding recorded by the trial Court was affirmed by the District Judge as such. As stated earlier, in support of his plea for being a co-sharer the plaintiff-appended along with the plaint Jamabandi for the year 1952, which was of much earlier period. No other evidence of any worth was produced by the plaintiff-respondent in this respect; so this plea of the plaintiff-respondent was rightly rejected by the High Court. However, the plaintiff has categorically taken a plea that he is Yak-Jaddi' of vendor and this plea was substantiated by cogent evidence led by him on the record in the trial Court. A further supporting factor which goes in favour of plaintiff is that this plea was averred in para No,1 of the plaint which was not denied by the vendee-appellants. The plaintiff in support of his plea produced oral evidence of Noor Ahmed, son of Nawab Ali, Sher Zaman, son of Khuda Bakhsh, Abdul Aziz, son of Sher Muhammad, Wali Muhammad, son of Ghulam Muhammad and got his own statement recorded as a witness who fully supported the plea raised by the plaintiff-respondent.
The vendee Gul Hussain, the predecessor of present appellants, in his statement recorded as witness on 28-10-1984, admitted p his examination-in-chief the above position in the words {{URDU TEXT}} . So there remains hardly any doubt that the pre-emptor/respondent is 'Yak-Jaddi' of the vender.
9. Another important question that emerges is as to whether the judgment and decree passed by the trial Court and affirmed by the first Appellate Court can sustain on the above ground of plaintiff's being ' Yak-Jaddi' of the vendor when the decree was not passed on the said ground and the plaintiff-respondent failed to bring in any appeal or file cross-objection in this regard. The decree was passed in favour of the plaintiff-respondent. As the decree by both the Courts was passed in favour of plaintiff-respondent in that course the plaintiff under Order 41 rule 22 Civil Procedure Code, as respondent, though may not have appealed from any part of the decree, may support the decree on any of the grounds decided against him in the Court below and may also take any cross objections to the decree which he could have taken by way of appeal. It may be clarified that any party aggrieved by a judgment and decree, may appeal against it and attack of findings but an aggrieved party who is a respondent in an appeal filed by the other party, can also support the decision not only on the points decided in his favour, but also attack the points decided against him, without filing any appeal or cross-objections, as visualised under the above Rule. The relevant rule is reproduced below:- ' 0.41, R.22. Upon hearing respondent may object to decree as if he had preferred separate appeal.- --
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
(2)
(3)
(4)
(5)
10. In a case reported as Khairati and 4 others v. Aleem-ud-Din and another (PLD 1973 SC 295), the following observations were made at page 298 of the report:-
(iii) that, furthermore, under Order XLI, rule 22 of the Code of Civil Procedure, any respondent, though he may not have appealed from any part of the decree, may support the decree even on any one of the ground decided against him in the Court below.
' It is no doubt true that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection. In the present case, the trial Court had found as a fact that the suit for specific performance was not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case not seeking to support the decree as it was but rather to attack a finding in the decree; and this he could not do without filing any cross-objection."
' Similarly in a case reported as .Pakistan International Airlines v. Messrs. Khalid Brothers (PLD 1992 Karachi 78), it was observed at page 79 of the report as under: - ' "An examination of Order XLI, rule 22 of the Civil Procedure Code would reveal that a respondent, though he had not appealed from any part of the decree, yet, without any conditions or restrictions could support the decree, not only on grounds decided in his favour but also on all or any of the grounds decided against him in the Court below. However, in the event a respondent to an appeal desired to attack the decree, wholly or in part, he could only do so by taking necessary cross- objections to the decree, such as he could have raised, had he preferred an appeal."
11. The analysis of the case law shows that plaintiff-respondent could defend the decree passed in his favour although he had not filed cross-objections. In this view of the matter, the High Court committed no illegality by C observing that plaintiff-respondent was entitled to a decree for possession of the suit land on the basis of his being the 'Yak-Jaddi' of the vendor having a preferential right of purchase as compared to the vendee.
12. Now adverting to the objection raised by the learned counsel for the appellant that on 16th of March, 1993, the. Right of Prior Purchase Act had been amended in Azad Kashimir whereby the period of limitation for filing the suit for pre-emption was reduced for 1 year to 120 days and this amendment being retrospective in nature the suit of the plaintiff-respondent should have been dismissed. According to the learned counsel it was enjoined upon the plaintiff-respondent to prove his superior right at three stages, namely; at the time of sale, at the time of institution of suit and at the time of decree of the trial Court. The above contention raised by the learned counsel for the appellant stands already resolved in a Full Bench case titled Fazal Dad v. Khadim Hussain and another (1995 M LD 1299), wherein at page 67 of the report it appears as under:- ' "The principle of three stages would apply only if the right has not defeated or taken away the right of pre-emption. In words of section 6 of the General Clauses Act, the repeal has not affected the right which had accrued under the repelled law. Thus the right is not destroyed but is protected and the change of law does not affect the right in any way. Consequently the legal proceedings will be continued as if the law had not been repealed."
' Again on page 68 of the report in para No,38 it was opined as under:- ' "As discussed elsewhere the effect of substitution of section 14 is that the new section shall be deemed to have been legislated on 13th of March, 1993 when the Amendment Act was enacted.
Since the law was not in force when the sale-deed under dispute was executed, the rights granted by the new section cannot be made available to the respondent-plaintiff. The fact that respondent-plaintiff has in his plaint included these grounds does not make any difference in legal position."
' Even otherwise, in the instant case, the preferential right of plaintiff was subsisting at the three stages as the decree was passed in his favour by the trial Court on 15-9-1993, whereas the amended law was enforced on 16-9-1993.
13. In reply to the last objection raised by the learned counsel for the appellants that in compliance of the order of the Court the plaintiff-respondent has not deposited the full decretal amount of Rs,7,775,50 in the trial Court and the decree of pre-emption being conditional in nature the suit of plaintiff stood dismissed when he committed default in depositing the less amount of Rs,7,175.50.
Raja Muhammad Yunus Tahir, the learned counsel for the respondent, submitted that plaintiff- respondent made no default in depositing the whole decretal amount. In the first instance in compliance with the order of the trial Court he deposited Rs,600 as 1/5th of the consideration amount and the remaining decretal amount to the tune o Rs,7,175.50 was deposited by the plaintiff respondent on 4-10-1993. Thus making the total of Rs,7,775.50. The learned counsel has also attached a verification to this effect from the office of the trial Court.
14. Be that as it may if the decretal amount is not deposited in full it is for the executing Court to see as to what is its effect on the decree.
15. For the reasons stated above, finding no force in this appeal, it is dismissed with costs in this Court.