' SARDAR MUHAMMAD RAZA, C.J.--- Mufti Ibrar Ahmed Khan brought a suit against Hidayat Khan for possession through preemption of property measuring 5 Kanals. After receiving notice and before filing written statement the defendant Hidayat Khan submitted an application under Order 7, rule 11, C.P.C., claiming therein that no sale transaction, at all, had taken place and thus the pre-emptor had no cause of action. On 14-7-2001 by the learned trial Court and on 21-9-2001 by the learned Additional District Judge, Mansehra, such application was dismissed concurrently and hence this petition.
2. The denial of transaction makes the sale a question of dispute and hence being a question of fact, it shall have to be proved by the party on whom lies the burden. This material question of fact going to the very A root of the case, cannot be taken for granted, on mere application under Order 7, rule 11, C.P.C.; the latter merely being an application and not pleading. Let the defendant file a regular written statement wherein he may take any plea with regard to existence or otherwise, of the disputed transaction. Thereafter, the Court will frame issues and the party shouldered with the responsibility concerned, will have to discharge the burden. The matter in view of a substantial question of fact could not be short-circuited.
3. Even otherwise, when in order to resolve a question of fact some evidence is required to be adduced by the parties, the provisions to Order 7, rule 11, C.P.C. Cannot be brought into play. The orders being perfectly correct, the writ petition is hereby dismissed in limine.