SAQIB NISAR, J.---The present regular first appeal has been filed against the impugned judgment and decree dated 13-11-1993, whereby the suit for preemption, filed by the, appellant against the respondents, has been dismissed.
2. Briefly stated the facts of the case are that vide sale-deed dated 18-10-1973 the respondents purchased 431 Kanals, 7 Marlas of land, situated in Chak No,328/J.B., Tehsil Toba Tek Singh; the appellant, on 9-9-1974 brought a suit for pre-emption on the sole ground of being owner of the estate. This suit was resisted by the respondents, out of the pleadings of the parties, following eight issues were framed:--
(1) Whether the plaintiff has superior right of pre-emption as against the defendants-vendees?
OPP
(2) Whether the suit is for the benefit of some outsider, if so, with what effect? OPD
(3) Whether, the plaintiff has waived his right of pre-emption, if any? OPD
(4) Whether the suit is untenable in view of preliminary Objection No,3 of the written statement?
OPD
(5) Whether the defendants-vendees paid Rs,4,10,000 to the tenant Sardar Muhammad, if so, whether the same was in continuation of the original sale transaction and termed as part of the sale price? OPD
(6) Whether the defendants-vendees have made improvements on the suit-land; if so, what is their value and with what effect? OPD
(7) Whether the suit has been correctly valued for the purpose of court-fee and proper court-fee has been affixed thereon? OPP
(8) Whether the suit is false and frivolous to the knowledge of the plaintiff, it' so, whether the defendants are entitled to special costs from him and to what extent? OPP
(9) Relief.
The learned Civil Judge, by giving findings on the material issues in favour of the appellant, decreed the suit on 10-9-1980. Aggrieved, the respondents preferred a R. F 4. No,186 of 1980, which was dismissed. Therefore, Civil Appeal No,2 of 1989, was filed by the respondents before the Honourable Supreme Court, which was accepted vide judgment, dated 25-8-1992, and is reported as 1992 SCM R 2300. After the remand of the case, the learned Civil Judge, has dismissed the suit, hence this appeal.
8. Learned counsel for the appellant contends, that the respondents had resisted the suit of the appellant, mainly on the two grounds, firstly that they had acquired about 1 Kanal of land in the same estate through gift, and secondly, that they have purchased agricultural land in the estate through sale-deed dated 8-9-1974, registered on 10-9-1974 (Exh.D.27), thus, as they were also the owners having equal right of pre-emption; but during the course of the proceedings before the trial Court, the respondents moved an application to the Court on 29-5-1980, whereby they gave up their defence on the basis of the sale of 4 Kanals of land; to this effect the respondents, also, made a statement before the Court; moreover, at the final stage of hearing, the respondents, in their written submission in clear and unequivocal terms, mentioned that they would not press their defence on account of the sale of 4 Kanals of land, resultantly, once having given up their defence oh this score, and in view of the determination by the Honourable Supreme Court in 1992 SCM R 2300 about 1 Kanal of land gifted to them, being not part of the estate, on account of Sakni in nature, the respondents could not prove that they were also the owners of the estate, having equal right of pre-emption, therefore, the suit of the appellant was liable to be decreed. It is also submitted, that in the recital of the sale-deed Exh.D.27, a reference has been made to a receipt dated 9-9-1974, whereas, the document is purported to have been executed on 8-9-1974, thus, it is clear that the sale-deed has been ante dated, and therefore, it is proved that the respondents had not improved their status before the institutions of the pre-emption action against them. It is further submitted, that in the post-remand proceedings, the appellant, had moved an application under Order XIV, rule 5, C.P.C. on 17-2-1993, asking for the framing of additional issue for the giving up of their defence regarding 4 Kanals purchased through Exh.D.27. This application was erroneously rejected by the learned trial Court, vide order dated 27-5-1993. Lastly, it is submitted that the learned trial Court has gone beyond the scope of remand order of the Honourable Supreme Court, inasmuch as, has decided the Issue No,1 about the superior right of preemption against the appellant, which in the earlier round of litigation, was found in favour of the appellant, not only by the trial Court, but affirmed and upheld in R.F.A. No,186 of 1980 by this Court. The finding on this issue was never upset/reversed by the Honourable Supreme Court in C.A. No,2 of 1989, therefore, such issue could not be touched.
4. Conversely, the learned counsel for the respondents has made reference to the ,paragraph 15 of the judgment of the Honourable Supreme Court which reads as below:-- "15. We agree with the High Court that no right of pre-emption was conferred on the appellants on account of gift of one Kanal land. This piece of land has been correctly adjudged as Sakni and thus not part of the estate. The appellant's plea that they were owner of the estate thus stood negated.
Their ownership of 4 Kanals of agricultural land was decidedly a second string to their bow but they themselves relinquished reliance on it, and got the suit with regard thereto decreed against them on 19-11-1981. It seems to us that the appellants abandoned reliance on their title to this piece of land, which was, the subject-matter of two pre-emption suits, one brought by the respondent and the other by the rival pre-emptor merely to avoid postponement of the decision of the suit giving rise to the instant appeal. Initially the appellants had relied upon the sale of this land, for improvement of their status. The fate of their defence that they too were owner of the estate, thus depended on the survival of the 4 Kanals sale in their favour. Under section 28-A of the Punjab Preemption Act, unless the suit relating to this sale was decided, the plea raised by the appellants in the other suit could not be adjudicated upon. The combined reading of the appellants' application dated 19-5-1981, their joint statement dated 12-6-1980 and the order dated 12-6-1980 of the Civil Judge, Toba Tek Singh who was seized of the suit are suggestive of the inference drawn by us. The High Court, however, excluded from consideration the purchase of 4 Kanals land by the appellants for different reasons. There is no controversy that the sale-deed in respect of this land was executed in appellants' favour on 8-9-1974 i,e, a day before the institution of the suit. It was presented for registration on 9-9-1974, but registered on 10-9-1974. In the opinion of the High Court, as the document was registered after the institution of the suit, the transaction was of no avail to the appellants. The view taken by the High Court is untenable. Section 47 of the Registration Act seemingly escaped notice of the learned Judges of the High Court, which provides that a document registered on a date subsequent to the date of its execution operates from the date of the execution. Obviously, therefore, the title to the land had passed on to the appellants on 8-9- 1974, and they could justifiably bank on it to oppose the suit filed by the respondent."
It is stated by the learned counsel that the above points agitated by the appellant, have already been conclusively decided and determined by the Honourable Supreme Court. The case was remanded only on two points, which are as under:- "(i) Whether Muhammad Abbas, decree-holder, failed to deposit the purchase money into the Court in accordance with the terms of the decree dated 19-11-1981 and consequently his suit stood dismissed: (ii)In case of dismissal of the suit whether the appellants' title to 4 Kanals land clothed them with the right of pre-emption equal or superior to the one claimed by the respondent."
The appellants were also permitted to adduce evidence in rebuttal upon these two issues, therefore, neither there was any requirement for framing an additional issue nor the learned Civil Court, could have gone beyond the scope of the remand by the Honourable Supreme Court. It is also submitted, that in the light of No,(ii) point, formulated by the Supreme Court, the learned Civil Judge, could validly re-assess, the question about the superior right of pre-emption of the appellant.
5. We have heard the learned counsel for the parties. The paragraph of the judgment of the Honourable Supreme Court, reproduced above, provides a complete answer to the submissions, made by the learned counsel for the appellant, except on Issue No,1, to the extent that in the post- remand proceedings, it has been erroneously held, that the appellant is not the owner of the estate. In this behalf, it may be held, that in the earlier round of litigation the findings of the trial Court, in this behalf, were in favour of the appellant, and against the respondents, which findings were upheld in appeal by this Court in R.F.A. No,186 of 1980. The Honourable Supreme Court, did not upset this findings of fact, recorded by the two Courts. Resultantly, in the post-remand proceedings before the trial Court, there were only two points, which were sent for determination and no other issue could be re-assessed, therefore, the trial Court, could not have reviewed the findings of fact, recorded by its predecessor, and upheld by this Court in R.F.A. Consequently, to this extent, the findings of the trial Court on Issue No,1, holding that the appellant, is not an owner of the estate, cannot sustain and are reversed.
6. Subject to what has been stated above, this appeal has no merits and is hereby dismissed.