' IFTIKHAR MUHAMMAD CHAUDHRY, J.---By this judgment we propose to dispose of Civil Appeals Nos.640 of 1994 and 1136 of 1994 as in both the matters common questions of facts and law are involved. PRECISE FACTS OF APPEAL NO.640 OF 1994 ARISING OUT OF C.P.S.L.A. NO.1052-L OF 1992
2. Bashir Ahmad and Muhammad Amin sons of Sardar Bakhsh owners of land measuring 118 Kanals, 17 Marlas situated in Village Kirpalpur of Tehsil and District Multan sold their property vide Mutation No,260 sanctioned on 15th May, 1973 to Mst. Umat Ullah wife of Ghulam Shabbir against a sale consideration of Rs,77,200. The respondents claimed possession of the property through right of pre-emption by filing a suit on 13-5-1974 in the Court of Senior Civil Judge, Multan. Their claim was that they have preferential right to purchase this property being the collaterals of the vendors.
After filing of the suit it transpired that original purchaser Mst. Umat Ullah had transferred the land, subject-matter of proceedings in favour of her daughter Mst. Farrukh Jabeen, the appellant, as such she was also impleaded as one of the defendants in the pre-emption suit.
3. In the written statement claim of the pre-emptors was vehemently repudiated by appellant and Mst. Umat Ullah.
4. Learned trial Court framed issues arising out of pleadings of the parties on 11-12-1974. However, after impleadment of appellant Mst. Farrukh Jabeen as defendant an additional issue was also framed on 26th May, 1976. Learned trial Court after observing codal formalities vide judgment dated 20-7-1981 decreed the suit. First Appeal filed by appellant before the District Judge, Multan was dismissed on 15-8-1982. The appellant preferred Second Appeal before the High Court, which was also dismissed by means of impugned order, dated 18-7-1992.
PRECISE FACTS OF APPEAL NO.1136 OF 1997 ARISING OUT OF C.P.S.L.A. NO.1053-L OF 1992
5. Muhammad Jaffar, Muhammad Nasir and Muhammad Amin sons of Muhammad Hayat sold their landed property measuring 79 Kanals, 7 Marlas situated in village Kirpalpur, Tehsir and District Multan to Mst. Umat Ullah mother of appellant Mst. Farrukh Jabeen for a sale consideration of Rs,51,600 vide Mutation No,259 sanctioned on 15-5-1973.
6. The respondents Maqbool Hussain and others claimed their preferential right to purchase the suit-land being the collaterals of the vendors, therefore, they instituted suit for possession through right of pre- emption on 13-5-1974 in the Court of Senior Civil Judge, Multan. The suit land purchased by Mst, Umat Ullah was subsequently transferred by her in favour of her daughter Mst.
Farrukh Jabeen (appellant). After filing of the suit when this fact came to the notice of respondents they impleaded the appellant as one of the defendant.
7. The suit was contested by the appellant. Learned trial Court framed issues on 10-1-1975. However, after impleadment of appellant two additional issues were also framed.
8. After recording evidence and observing procedural formalities learned Senior Civil Judge decreed the suit vide judgment dated 20-7-1981 in favour of the respondents. Learned District Judge in proceedings of first appeal and High Court in R.S.A. No,124 of 1982 upheld the judgment/decree of the trial Court. As such instant proceedings have been filed.
9. The appellant instituted two separate Petitions Nos.1052-L and 1053-L of 1992 in this Court. Both the petitions came up for hearing on 30th April, 1994 when leave to appeal was granted in former petition to examine the following question:-- "Contention is that pedigree-table Exhs.P/1 and P/2 do not connect the pre-emptors and vendors.
On going through these documents, we consider that this contention needs examination."
10. As far as latter C.P.S.L.A. No,1053-L of 1992 is concerned it was dismissed vide order of the even date. However, subsequently leave refusing order was recalled in Civil Review Petitions Nos.53-L and 77-L of 1994. Operative para. Is reproduced hereinbelow:-- "We, accordingly, review the order dated 30-4-1994 and modify the same to the extent that leave shall also be deemed to have been granted in C.P. No,1053-L of 1992 on the same grounds on which leave was granted in the connected C.P. 1052-L of 1994."
11. Learned counsel for the appellant contended as under:--
(i) Learned trial Court closed the evidence of appellant/(defendant) vide order, dated 20th February 1980 in exercise of its powers under Order XVII, Rule 3, C.P.C. Against the law.
(ii) The plaintiffs after producing evidence of their witnesses did not record their statement and reserved it for recording in rebuttal after the evidence of appellants/defendants. Under the law the procedure so adopted by the respondents with consent of the Court was not permissible because before completion of evidence of the plaintiffs the Court had no justification to call upon the appellant/defendant to produce her evidence or for sake of arguments if it is assumed that respondents rightly reserved their right to make statement in rebuttal the appellant was entitled to have produced her further evidence alongwith her statement to rebut the evidence which plaintiffs/respondents produced. To substantiate his contentions at Nos.(i) and (ii) he placed reliance on the cases reported in (i) 1979 CLC 494, (ii) 1985 SCMR 585, (iii) 1987 CLC 101, (iv) PLD 1990 SC 1192, (v) 1990 SCMR 1252, (vi) PLD 1992 Lahore 92, (vii) 1992 CLC 212, (viii) 1993 CLC 1580, (ix) 1998 CLC 610 and (x) 1999 SCMR 105.
(iii) The suit was barred by time as it was filed beyond the period of limitation i.e, one year under Article 10 of the Limitation Act because possession of the suit-land had been obtained by appellant in pursuance of entries No,316 recorded in Roznamcha Waqyati on 4-5-1973 Mutation (Exh.P/5) in respect whereof was attested on 15-5-1973 whereas suit was filed on 13-5-1974 in respect of the property purchased by the mother of the appellant from Bashir Ahmad and Muhammad Amin sons of Sardar Bakhsh. Reliance was placed on PLD 1959 (W.P.) Lahore 295, PLD 1985 SC 41, 1997 SCMR 1617 and 1999 SCMR 279.
(iv) The pre-emptors and vendors have no relationship, therefore, the formers not being the collaterals of the latters' have no right to file the suit.
(v) Under section 15 of the Punjab Pre-emption Act, 1913 the respondents have failed to prove their entitlement, therefore, notwithstanding the fact whether they have any relationship with the vendors they have no right to file the suit. Reliance was placed on PLD 1968 Lahore 907, PLD 1983 SC 273, PLD 1991 SC 213 and PLD 1998 SC 1512.
12. Learned counsel for the respondents in response to the arguments of counsel for appellants replied as under:--
(i) As per the leave granting order dated 30-4-1994 the appellant can argue only the point noted therein unless the Court has extended the scope of the leave granting order if so prayed. Therefore, the contentions put forward on behalf of appellant except relating to limitation and relationship of the vendor and pre-emptors needs no discussion.
(ii) The appellant did not raise the contention noted in his arguments at Serial Nos.(i), (ii) and (v) either in the memo. Of appeal filed before District Judge or before the High Court, therefore, as per the consistent practice of this Court a point not raised before the High Court or the subordinate Courts cannot be allowed to be agitated for the first time before this Court.
(iii) The question of the suit being barred by time was agitated in different context before the trial Court and it was never argued that the suit is barred by time because as per the contents of the Roznamcha Waqiati possession of the suit-land was obtained by appellant much before the attestation of the mutation on 15-5-1973. To the contrary the maintainability of the suit being barred by limitation was questioned for the reason that the court-fee had been paid after the expiry of the period of limitation prescribed under the law, therefore, on this score as well no relief can be granted.
(iv) The respondents have successfully established before the learned High Court as well as First Appellate Court and the trial Court that they are collaterals of vendors and to substantiate their plea they have not only produced documentary evidence i.e, pedigree-chart but also produced oral evidence whereas the learned counsel for appellant has failed to point out any illegality or irregularity recorded in this behalf by the learned High Court as well as the subordinate Courts, therefore, no interference is called for in concurrent findings of facts.
13. We have heard the parties' counsel at length and have carefully gone through the record of case with their assistance so made available. A perusal of order dated 30-4-1994 indicates that leave was granted to appellant only to examine the contention that pedigree-table Exhs.P/1 and P/2 do not connect the pre-emptors and vendors. As such it will be seen, whether points noted in leave granting order or being argued for the first time can be allowed to be agitated. This Court exercises Constitutional jurisdiction conferred upon it under Article 185(3) of the Constitution of Islamic Republic of Pakistan according to which if an appeal to the High Court from a judgment/decree, order or sentence of a High Court is not competent under sub-Article (2) of Article 185 then appeal will be competent only with permission of the Court. This Court in fact is not a Court of facts, therefore, it only examines questions of law which are considered to be of public importance or in which the Court finds necessary to examine any. Contention in the interest of justice. As such the contentions which found favour with the Court at the time of granting leave are noted in the order and ordinarily at the time of hearing of appeal the Court confines itself to the leave granting order as held in (i) Roshti Khan and others v. Shahzada Khursraul Mulk and others (1992 SCMR 1317) and (ii) State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCMR 523). However, the scope of leave granting order can be extended subsequently if a request is made in this behalf but before exercising such judicial discretion a notice to the other party is deemed to be necessary for safe administration of justice if it has decided to examine the points of law beyond the scope of leave granting order. Admittedly in the instant case no request has been made on behalf of appellants to enlarge the scope of leave granting order nor this Court at any stage had felt it necessary to do so. It is noteworthy that learned counsel for respondents during arguments pointed out that he had no idea learned counsel for appellant will address the Court beyond the scope of leave granting order. Besides these -observations we have also examined with the assistance of learned counsel for the respondent the memo. Of appeal filed before the District Judge and the learned High Court in Regular First and Second Appeals. Surprisingly before both the forums the impugned judgments and decrees passed by Civil Judge were not attacked on the strength of the arguments that the evidence of appellant was closed unlawfully in purported exercise of jurisdiction under Order XVII, Rule 3, C.P.C. By the trial Court inasmuch as it was also not stated at all that there is no law to permit the plaintiffs/respondents to record their statements after the completion of evidence of appellants/defendants.
14. Similarly the question of entitlement of the respondent under section 15 of the Punjab Pre- emption Act, 1913 was not agitated at all during the proceedings remained pending before different forums, therefore, no interference is called for in the impugned order on the points which were never put forward either before the High Court or the subordinate Courts.
15. As far as the question of the suit being barred by time is concerned it was though agitated before the trial Court and an issue was also framed in this behalf but not on the premise that as per entries of Roznamcha Waqyati the possession of the suit-land was handed over to appellants in respect of the land purchased by them from Bashir Ahmad and others on 4-5-1973, to the contrary the plea of the appellant before the trial Court was that the suit was instituted on 13th May, 1974 but the deficient court-fee was paid on 13th July, 1974 i.e, after the expiry of period of limitation, therefore, the plaint is liable to be rejected being barred by time. The argument so put forward did not impress the trial Court and the First and Second Appellate Courts. Even otherwise the contents of Report No,316 Roznamcha Waqyati do not indicate that possession was delivered on the day when the report about the factum of possession was entered. A careful perusal of the entry suggests that on the day of attestation of mutation entry i.e, 15-5-1973 the delivery of possession was accepted by the appellants; whereas admittedly the suit was filed on 13-5-1974 before the expiry of limitation. In addition to it this question can be examined from another angle i.e, that the pre-emptors have no notice regarding entry in the Roznamcha Waqyati on 4-5-1973, therefore, any proceedings which had taken place in their absence will have no binding effect upon them. As far as second transaction, which is covered by Civil Appeal No,1136 of 1997, is concerned no reference of any report in the Roznamcha Waqyati has been relied or referred to by the learned counsel.
Thus, under the circumstances we see no reason to interfere in the findings recorded by the trial Court and First and Second Appellate Courts treating the suit of respondents/plaintiffs within time.
16. Now adverting towards the contention of the appellant's counsel on which leave to appeal has been granted it is to be noted that one of the plaintiff namely Faqir Hussain has fully supported the contents of pedigree-chart. Similarly D.W. Muhammad Jaffar son of Muhammad Hayat who is one of the vendor in his cross-examination has proved the contents of pedigree-table Exhs.P/1 and P/2.
Thus, we are of the opinion that findings of fact recorded on this score as well being unexceptionable are not open to interference by this Court.
' For the foregoing reasons we see no merit in the appeals which are accordingly dismissed. No order as to costs.