' MUHAMMAD YUNUS SURAKHVI, J.---The appeal, by way of leave of the Court, is directed against the judgment and decree of the High Court, dated 27-11-1998, whereby while accepting the appeal filed by respondent No,1 the judgment and decree passed by the District Judge, Kotli on 16-6-1994, were set aside and the judgment and decree, passed by the Additional Sub-Judge, Kotli were restored.
2. The necessary facts giving rise to the present appeal are that the land in dispute is entered in Survey Nos.1706 and 1707 of Village Kurti, Tehsil Kotli, measuring 10 Kanals. According to the settlement record of 1970-71 its old number is 516. According to the old settlement record the land is 'Shamlat Deh' and the father of the appellant and pro forma defendant Ghulam Haider Shah and Ghulam Mohi-ud-Din Shah, who are appellant and pro forma-respondents in the case, are entered as occupancy tenants of Category 'A' to the extent of 2/3rd and Maqbool Shah and Nazeer Shah, sons of Makhan Shah, in the same category to the extent of 1/3rd. Karam Din and others enjoyed occupancy rights of Category 'B' a sale-deed is alleged to have been executed on 11-7-1969 by occupancy tenants of Category 'B' i,e,, Karam Din and others in favour of Nazir Hussain Shah alias Qurban Shah. In the new record of rights prepared in 1970-71 Qurban Shah is entered as sole occupancy tenant under section 8 of the Tenancy Act, to the exclusion of Gami Shah and another.
On 13-4-1972 the said Qurban Shah executed a sale-deed in favour of Sahib Dad, the father of respondent No,1. On 11-4-1973 the predecessors of the appellant and pro forma-respondent filed a declaratory suit challenging the validity of the sale-deed in question claiming 2/3rd share on the basis of title and pre-emption in the alternatives co-sharers. On 1-5-1973 proprietary rights were conferred on said Qurban Hussain Shah, vendor, under the Land Reforms Act. On 27-6-1976 the Government issued a notification under section 6(2) of Prior Purchase Act exempting from pre- emption the properties within the municipal limits of all the towns in Azad Kashmir. The Government on 20-4-1986 further issued an explanatory notification under section 4(1) of the Local Government Ordinance, 1986 explaining the areas including in the limits of Municipal Committee Kotli. The defendants thus, amended the written statement accordingly to raise the plea of exemption from preemption. On 15-6-1991 the trial Court dismissed the suit for want of proof of title to the extent of 2/3rd share and exemption from pre-emption on the basis of the abovesaid two notifications. The appellant and pro forma respondents on 15-7-1991 filed an appeal before the District Judge. The appeal was partly accepted on 16-6-1994 to the extent of title of 2/3rd share and was dismissed to the extent of pre-emption. On 9-8-1994 respondent No,1 Mst. Maqbool Begum widow of Sahib Dad filed an appeal in the High Court and the appellant filed cross- objections.
3. A learned Judge in the High Court on 27-11-1998 accepted the appeal filed by respondent No,1 mainly on the grounds that proprietary rights had been solely conferred on Qurban Shah under the Land Reforms Act. Thus, the Civil Court had no jurisdiction in the matter. It was also observed by the High Court that the appellant may seek his remedy under the Land Reforms Act. It was further observed that in view of notification of 1976 the property is exempted from exercise of right of pre- emption. It is the aforesaid judgment and decree, of the High Court, dated 27-11-1998, which are the subject-matter of present appeal.
4. Raja Muhammad Siddique Khan, the learned counsel for the appellant, inter alia contended that the documentary as well as the oral evidence was misread and the same was not appreciated in its true perspective. The learned counsel maintained that the cross-objections filed by the appellant were not taken into consideration by the High Court and those were not disposed of. The learned counsel emphasized that in the impugned judgment there is no mention of the cross- objections whatsoever. It was further argued by the learned counsel for the appellant that it was wrongly held by the High Court that since proprietary rights under the Land Reforms Act had been conferred on Qurban Shah the suit was not maintainable and the Civil Court had no jurisdiction.
The learned counsel submitted that the said point was neither raised in the pleadings nor there was any issue on the point and that there was no evidence of conferment of proprietary rights on Qurban Shah as no order of the competent Authority was placed on record.
' The learned counsel for the appellant pointed out that the learned Judge in the High Court did not apply his mind in a judicial manner as the contentions as raised by the counsel for the respondent have been attributed in the impugned judgment as the arguments of the counsel for the appellant and vice versa.
5. The learned counsel for the appellant pressed into service the submission that the sale-deed in favour of Qurban Shah was not brought on record, no vendor and the vendee appeared as witnesses in support of sale-deed. Similarly the attesting witnesses of mutation No,11 Exh.D.X. Also did not appear in the Court nor the order of S.A.L.C. Has been brought on record as such the findings recorded by the High Court were liable to be set aside.
6. After hearing the learned counsel for the appellant and perusing the record it may be stated that the suit was filed on 11-4-1973 which was first dismissed on 30-10-1986 but on appeal the case was remanded by the District Judge, Kotli to the trial Court for fresh trial. Thereafter, the suit was again dismissed on 15-6-1991 and the learned District Judge, Kotli reversed the order through judgment and decree, dated 16-4-1994.
7. The land in dispute is 'Shamlat Deh' and in 'Jamabandi' 1996-97- Bk Maqbool Hussain Shah and Nazir Hussain Shah are entered as occupancy tenants of the share of 1/3rd and Gami Shah and Haider Shah as sharers of 2/3rd in Category 'A' whereas Karam Din and others are entered as occupancy tenants of Category 'B' under section 8 of Tenancy Act but in Misle Haqiat 1970-71 Qurban Hussain Shah is entered in the land as occupancy tenant of the suit land on the basis of Mutation No,876 which shows that occupancy rights were purchased by Qurban Hussain Shah.
Qurban Hussain Shah further vide, sale-deed, dated 13-4-1972, transferred the suit land for a consideration of Rs,35,000 in favour of Sahib Dad the father of respondent. As the proprietary rights had been conferred on Qurban Hussain Shah under Land Reforms Act vide Mutation No, 11, dated 1- 5-1973, wherein there is an entry to the effect that Qurban Hussain Shah has deposited the requisite compensation amount vide the order of S.A.L.C., dated 1-4-1972.
8. The suit filed by the predecessor of the appellant suggest that the appellant admits the position that in Misl-e-Haqiat 1970-71 Qurban Hussain Shah is the sole occupancy tenant of the suit land on the basis of Mutation No,876 on account of sale in his favour. This document has been tendered by the appellant himself in evidence and exhibited as Exh.P.D. Similarly 'Khasra Girdawari' tendered in evidence as Exh.P.B. Also shows that Qurban Hussain Shah is entered as sole occupancy tenant under section 8 of the Tenancy Act: Exh.D.X. Is a copy of Mutation No,11, dated 1-5-1973 wherein Qurban Hussain Shah is entered as sole occupancy tenant and at the time of attestation of mutation it was shown that he had deposited the requisite amount before S.A.L.C. On 1-4-1972. Even in the sale-deed executed by Qurban Hussain Shah in favour of father of respondent Maqbool Begum there is a recital that Qurban Hussain Shah deposited compensation amount on 1-4-1972 and he became the full owner of the land to the exclusion of Gami Shah and another but despite the knowledge at the time of the filing the suit the appellant did not challenge the recital made in the sale-deed rather all these documents were relied upon by the plaintiff-appellant and entries of these documents were not challanged. The mere fact that in 'Jamabandi' 1996-97-Bk the entry was to the extent of 1/3rd share in favour of Qurban Hussain Shah and 2/3rd share in favour of the Gami Shah and Haider Shah does not prove the case of appellant. It is also pertinent to point out that in the plaint filed by the predecessor of appellant in paras. Nos.3 and 4 he specifically averred that Qurban Hussain Shah vide sale-deed, dated 3-4-1972 transferred the entire land in favour of Sahib Dad the father of respondent and as such the sale-deed was in excess of the share of Qurban Hussain Shah vendor. The trial Court to this effect framed Issue No,4 as under:-- "Whether the sale-deed in question is beyond the share of vendor and as such is illegal and inoperative on the rights of plaintiff."
' The onus of proof of this issue was placed on the plaintiff-appellant. This shows that so far as the sale-deed of whole of the land is concerned that stands admitted by the appellant-plaintiff. The only issue which the plaintiff-appellant had to prove was as to whether the sale-deed was in excess of the share of Qurban Hussain Shah the vendor, and alternatively whether the plaintiff had preferential right of purchase.
9. This issue was rightly decided by the trial Court that the plaintiff-appellant failed to prove this issue and did not bring on record any material showing that Qubran Hussain Shah sold the suit land in excess of the share, because at the time of sale he had become full owner to the exclusion of Gami Shah and Haider Shah.
10. So far as the objection raised by the learned counsel for the appellant that the cross-objections filed by the appellant were not taken into consideration by the High Court and the same were not disposed of it may be stated that this contention does not help the case of the appellant. The learned District Judge passed a decree to the extent of 2/3rd share in favour of appellant on 16-4- 1994. This order was assailed by the respondent Maqbool Begum by filing an appeal in the High Court. The appellant also filed cross-objections on 24-11-1994. On the appeal filed by respondent Maqbool Begum on 3-10-1994, respondents Nos.1, 4, 5, 8, 11, 12, 13 and 15 appeared in the Court through their counsel, Khalid Mehmood Khokhar.
Thus, from 3-10-1994, the limitation provided for filing objections was one month from the date of first appearance of the appellants in the Court. As the appellants appeared in the Court on 3-10- 1994, they could have filed cross-objections by 3-11-1994, whereas the cross-objections were fled on 24-11-1994. This shows that cross-objections filed by the appellants were on the face of it time- barred as Order 41, rule 22 of the Code of Civil Procedure provides that a respondents may file cross-objections to the decree which he could have taken by way of appeal, provided he has filed such objections 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. Even if we assume the aforesaid cross- objections to be within time it has been averred in para. 2 of the cross-objections that Nazir Hussain Shah alias Qurban Hussain Shah has purchased the land from Mahand, Kala and others on the basis of which Mutation No,876, dated 25-6-1970 was attested in his favour. The aforesaid admission made by the appellant again shows that he admits the execution of sale-deed, dated 11-7-1969 in favour of Qurban Hussan Shah and attestation of Mutation No,876, dated 25-6-1970 on the basis of which Qurban Hussain Shah purchased the land. Similarly in para. No,3 of cross- objections the appellant has stated that Qurban Hussain Shah vide sale-deed, dated 13-4-1972, transferred the whole land in favour of Sahib Dad, the father of respondent No,1. Thus, the objection raised by the learned counsel for the appellant merits no consideration and the same, stands repelled. Though the High Court did not advert to the cross-objections filed by the appellant but the outcome of these cross-objections would have nothing if the same had been considered and disposed of by the High Court. For this very reason we did not deem it proper to remand the case to the High Court as we have already observed that even if cross-objections had been considered the outcome would have been nothing.
11. The next objection raised by the learned counsel for the appellant is that the High Court in its impugned order, observed that since Qurban Hussain Shah became full-fledged owner of the suit land under the Land Reforms Act of 1960 by depositing the compensation of land after purchasing the suit land, therefore, if at all the appellant was aggrieved by any of the order passed under the Land Reforms Act he should have approached the proper forum and the Civil Court had no jurisdiction. It is true that no issue was framed as to whether the Civil Court had jurisdiction in the matter or not but the fact remains that the crucial issue to be proved by the appellant-plaintiff was Issue No,4 i,e, whether the sale-deed executed by Qurban Hussain Shah in favour of Sahib Dad the father of respondent was in excess of share of the vendor. We have already observed that the plaintiff-appellant miserably failed to prove the said issue. Even if the High Court had observed that the Civil Court had the jurisdiction the plaintiff-appellant, as said earlier, failed to prove his case and he was not entitled to get the decree prayed for. It will not be out of place to reproduce subsection (2) of section 32 of the Land Reforms Act which reads as follows:-- "No such Court or Authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceedings before the Commission or before any officer exercising any power or discharging any function under this Act or the rules or orders thereunder, in relation to anything done or intended to be done by or at the instance of the Commission or such officer."
12. Probably it was in the mind of the learned Judge in the High Court, while keeping in view the above provision of law that the proper forum for the appellant was to seek his remedy under Land Reforms Act. In the instant case as the appellant himself admits by way of tendering and exhibiting documentary evidence that Qurban Hussain Shah vendor, became, full owner by depositing the compensation amount vide order of S.A.L.C., dated 1-4-1972, therefore, the learned Judge in the High Court dilated upon the matter and observed that the appellant should have sought his remedy under Land Reforms Act.
13. The next question that needs determination is as to whether the suit land is situated within the municipal limits of Kotli and the same has been exempted from exercising the prior right of purchase. The learned trial Court on this point framed additional issue No,1 and observed that vide Notification of Government, dated 27-6-1976 and 20-4-1986, the suit land falls within the limits of Municipal Committee, Kotli and as such has been exempted from the exercise of right of prior purchase. This finding was concurrently recorded by the trial Court the first Appellate Court and the High Court. Therefore, the same cannot be set aside. Even otherwise the learned counsel for the appellant did not assert that the suit land had not been included within the municipal limits of Kotli and is not exempted from the exercise of right of prior purchase. He simply argued that the subsequent notification is based on mala fide as the same ends at the limits of the suit land. We are at a loss to subscribe to the view of the learned counsel because if he had any grievance to challenge the said notification on the basis of mala fide on the part of the Government he could have raised this plea by seeking a prayer for amendment in the plaint. For the first time in this Court this plea cannot be allowed 10 be raised. Even otherwise we are of the view that plaintiffs claimed their right of the prior purchase on the basis of their being co-sharers with the vendor.
Needless to say that when the settlement record was prepared in 1971 Qurban Hussain Shah became the sole occupancy tenant of the suit land and in all the subsequent Revenue Record brought on the file, the appellant did not figure anywhere.
' For the above-stated reasons, findings no force in this appeal, the same stands dismissed, with no order as to costs.