MUHAMMAD YUNUS SURAKHVI, J. - This appeal, by way of leave of the Court, has been preferred against the judgment and decree of the High Court passed on 30.6.1999, whereby the suit of pre- emption tiled by the appellant, herein, was dismissed on the ground that he was not from an agriculturist tribe and, thus, had no right of pre-emption.
2. The brief facts, giving rise to the present appeal, are that the land measuring 30 kanals, situate in village Nakkah Chan Shah, Tehsil and District Mirpur, was purchased by the respondent for a consideration of Rs. 65,000/-, vide a registered sale-deed dated 8.9.1993. The plaintiff-appellant brought a pre-emption suit against the respondent-vendee and the Sub-Judge after trial decreed the suit on payment of Rs. 65,000/-, as consideration of the sale-deed plus the expenses incurred on the execution of the sale-deed, of the total amount of Rs. 70,000/-, which was deposited by the plaintiff- appellant in the Court of Sub-Judge in pursuance of the judgment and decree of the Trial Court. The respondent preferred an appeal before the District Judge who dismissed the suit observing that as the father of the vendee-respondent was a displaced person from the construction of Mangla Dam, the appellant had no right of pre-emption in the suit land. The appellant feeling aggrieved by the judgment and decree of the District Judge preferred an appeal to the High Court but the same was dismissed despite holding that although the respondent- vendee could not be regarded to be a Mangla Dam displaced person, yet the suit filed by the appellant was not competent because no right of pre-emption vested in the plaintiff- appellant as being from a non-agriculturist tribe.
3. In support of appeal, it has been vehemently contended by Mr. Abdul Ghafoor Qureshi, the learned counsel tor the appellant, that it was not the case of the respondent in any of the Courts below that the plaintiff- appellant belonged to the tribe of "Sheikhs" which were not an agriculturist tribe. He has contended that there was no such plea or evidence in support of the said finding.
Thus, he has contended that the High Court was not justified to dismiss the suit on the ground which was alien to the stand taken by the vendee-respondent in his written statement. The learned counsel has further contended that the High Court after recording the observation that vendee- respondent was not a Mangla Dam affectee, the findings of the District Judge were to he set aside and that of the Trial Court were to be restored but instead the High Court has dismissed the suit on flimsy and artificial ground which was not relevant to the proceedings in view of the pleadings of the parties.
4. In reply Ch. Munsaf Dad. The learned counsel for respondent, by controverting the arguments advanced by the learned counsel for the appellant, argued that the question as to whether the plaintiff-appellant had a right of pre-emption or not was already subject of issue and thus it was not beyond the scope of the case to hold that he was not entitled to a preemption decree because he was from a non-agriculturist tribe. The learned counsel in support of his contentions relied on reported cases titled Burmah Eastern Ltd. Vs. Burmah Eastern Employees Union and others (PLD 1967 Dacca 190), Muhammad Khan, etc. Vs. Muhammad Sharif, etc. (PSC 1999 SC (AJK) 1557), Manghta Khan and others Vs. Mst. Hamida Begum and others (PLD 1981 SC 51) and maintained that it was the duty of the plaintiff-appellant to prove that he had a preferential right of purchase as against the vendee but he being from a non-agriculturist tribe failed to establish the case.
5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the High Court was not justified to dismiss the suit of plaintiff-appellant on a ground which was not subject of issue or controversy between the parties. The respondent in his written statement nowhere pleaded that the appellant was not from an agriculturist tribe, therefore, he had no right of pre-emption. After observing that the respondent-vendee was not a displaced person from Mangla Dam, it was necessary that the judgment and decree of the District Judge should have been set aside and that of the Trial Court should have been restored.
6. In our considered view a point which has not been raised by a party in its pleading, evidence on such a point cannot be looked into. In a case reported as Yusuf Vs. Hashimhhoy & Co. (PLD 1966 Karachi 457), it was held that the plaintiff cannot be allowed to prove the facts which he had not pleaded in his plaint.
In a case reported as Muhammad Amin Vs. Muhammad Yunus (1993 SCR 340), it was held that plea which is not taken in the pleading cannot be looked into; In a case reported as Syed Afzal Hussain Vs. Karachi Transport Corporation (PLD 1997 Karachi 253), it has been observed that a party cannot be permitted to travel beyond its pleadings and prove a case which such party has not set up in his pleading; and In a case reported as Sadiq Mahmood Shah Vs. M. Saran (AIR 1930 Privy Council 57), it has been held that where a claim has never been made in the defence, such claim cannot be considered at all.
7. So far as the authority cited by the learned counsel for the respondent titled Burma Eastern Ltd.
Vs. Burma eastern Employees Union and others (PLD 1967 Dacca 190) is concerned, it distinctly relates to rejection of plaint if the same did not disclose any cause of action. This authority is not relevant to the proposition involved in the present case as none of the Courts below including the High Court applied its mind for rejection of the plaint filed by the plaintiff-appellant. On the other had the Trial Court granted the decree tor pre-emption in favour of plaintiff- appellant as prayed for. Therefore, the question of rejection of plaint could not have arisen in the instant case. Even otherwise we have seen the averments made by the plaintiff-appellant in his plaint which show unmistakably that the plaintiff had a cause of action to sue the respondent.
8. In a case reported as Ameera Begum and 6 others Vs. Noor Hussain (1998 SCR 372), it has been observed by this Court in a following manner:- "As aggrieved party who is respondent in an appeal filed by the other party, can 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 the CPC does not apply to the proceedings before the Supreme Court, the aforesaid authority would not help the case of the respondent. It was incumbent upon the respondent to challenge the findings of the Trial Court by filing cross objections before the High Court or in this Court. Needless to say, the appeal in the instant case by the respondent could be preferred only after obtaining leave to appeal; therefore, the findings of the Courts below which were not challenged by the respondent by way of cross objections or appeal before the District Judge or the High Court could not be interfered with by this Court.
9. From the analysis of the case-law referred to above, it is evident that as to whether the appellant was belonging to a non-agriculturist tribe is a question of fact or at the most a mixed question of fact and law. The law stands settled that even a mixed question of fact and law cannot be allowed to be raised for the first the in the High Court or in the Supreme Court. In this view of the matter the finding of the High Court that the appellant was belonging to a non-agriculturist tribe therefore, he had no right of preemption, is not sustainable.
10. The learned Trial Court decreed the suit of plaintiff, whereas the High Court even after observing that the respondent was not directly Mangla Dam affectee still dismissed the suit of the appellant.
In our view the High Court committed a patent illegality by adverting to a point which was not raised in the pleading by the respondent.
11. In the light of what has been stated above, we accept the appeal of the appellant by setting aside the impugned judgment and decree passed by the High Court as well as those of the District Judge and restore the judgment and decree passed by the Trial Court. In the circumstances of the case we pass no order as to costs.