MIAN SAQIB NISAR, J. -- Briefly stated the facts of the case are, that the land in dispute was an evacuee property, held by Mst. Sardaran Bibi and others as quasi permanent allottees under Rehabilitation Settlement Scheme; they sold away their right, title and interest in the land to Nazar Muhammad, the appellant, ostensibly for Rs. 8,000/- by means of a-registered deed of sale on the 9th of June, 1964. In these circumstances, on the 23rd of February, 1965 the respondents brought a suit against the appellant for possession of the land by pre-emption on the payment of Rs. 4,000/-, in the Civil Court, at Hafizabad; the defendant resisted the suit by filing his written statement, controverting the allegations of the plaintiffs; he also raised an objection that the suit land is an evaguee property and sale was not pre-emptiable under the law. Learned Civil Judge, seized of the matter, out of pleadings of the parties, framed the following issues:-
(1) Is the suit land an evacuee property, if so, with what effect?
(2) Has the suit been correctly valued for the purpose of Court-fee, if not what is the correct valuation?
(3) Is the suit property pre-emptiable?
(3-A) Whether the plaintiffs have a superior right of preemption?
(4) Whether Rs. 8,000/- was find in good faith and actually paid?
(5) If issue No. 4 is answered in the negative then what is the market value of the suit property?
(6) Whether the defendant made arty improvements on the suit land, if so to what extent and whether they are entitled to recover their price.
(7) Relief.
Parties led their evidence and the learned Civil Judge, by giving his finding on issue No. 3, dismissed the suit, holding that the land is not pre-emptiable; however, issue No. 3-A with regard to superior right of pre-emption was found in favour of the plaintiff. Against the above, respondents preferred an appeal and the learned Appellate Court by reversing the findings of the Trial Court on issue No. 3, came to the conclusion that the property in question was not an evacuee property and thus could be pre-empted in law, accordingly, appeal of the respondent was allowed on 20.12.1966.
However, the case was remanded to the learned Civil Judge, for retrial on merits. Appellant challenged the remand order of the learned ADJ through FAO No. 9 of 1968. This Court vide judgment dated 10.2.1971, upheld the finding of the Court in appeal on issue No. 3, but held that there was no justification for the remand of the case to the learned Civil Judge, for retrial on merits, because already the learned Civil Judge, Hafizabad had disposed of the suit on merits after discussing all the issues, therefore, the Court in appeal, was required to decide the case on merits on the basis of the evidence, available on the record; aggrieved the appellant find a LPA No. 21/C/71 but judgment of the learned Single Judge was upheld vide judgment dated 12.3.1974.
2. After disposal of the matter by this Court in FAO and LPA, mentioned above, the learned District Judge, vide judgment dated 2.6.1981, though dismissed the appeal of the respondent as barred by time, but came to the conclusion, that the finding on issues Nos. 1 and 3, giving by the Trial Court was set aside by his predecessor and those findings have been affirmed by the High Court. As regards the issues Nos. 2 and 6, are concerned, the learned counsel for the respondent (appellant in this appeal) vide statement dated 1.6.1981, did not press these issues and has conceded issue No. 3-A, that the plaintiffs have superior right of pre-emption, so the findings of the Trial Court on these issues were affirmed. As per paragraph 13 of the judgment, learned counsel for respondent (appellant before the first Appellate Court), vide statement dated 1.6.1981, has admitted the sale price of Rs. 8,000/- as correct, so the findings of the Trial Court on those issues were set aside and it was held that Rs. 8,000/-, was the price, which was paid by the vendee to the vendor and this is the correct market value.
3. According to paragraph 14 of the judgment of the appellant Court dated 2.6.1981, the appellate (respondent in that appeal) has raised two new points, firstly, that the suit is liable to be dismissed for partial pre-emption and secondly, that appeal is time-barred, It was observed that so far as partial pre-emption is concerned, the appellant referred to the copy of the sale-deed dated 9.4.1964, marked as Ex. P-2, and. Copy of the mutation attested on the basis of the sale No. 103, dated 29.6.1964, marked as Ex.D-1 and submitted that khasra Nos. 241, 252, 381 and 299, have not been included in the suit, therefore, the suit is hit by the principal of partial pre-emption. This objection of the appellant was rejected by the Court on the ground that the plea of partial pre- emption was not raised in defence and this being a question of fact, cannot be allowed to be raised for the first time, during the course of arguments in appeal. Reliance in this behalf I was placed on 1976 CMR 344, therefore, it was held that the objection of the partial pre-emption is belated and the appellant cannot be allowed to take up such plea at this stage.
4. However, on the objection raised by the appellant. That appeal is barred by time, learned Appellate Court by analyzing the relevant facts in detail in paragraphs 15 and 16 of the judgment, came to the conclusion that the appeal (of the respondent) was barred by time and consequently dismissed the same. Aggrieved, the respondents challenged the above judgment and decree of the Court in appeal dated 2.6.1981 through C.R. No. 1082 of 1981; this Court while accepting the revision petition, concluded as follows:- "Without expressing any opinion regarding correctness or otherwise of the reports referred to above, I feel that the question relating to the period consumed by one or more Copying Agencies for supplying copies of the judgment and decree of the learned Trial Court needs further inquiry.
The learned ADJ has committed a material irregularity in not allowing an opportunity to the petitioner to rebut the report of the Copying Agency, Hafizabad, on which reliance was placed by him for deciding the appeal. I, therefore, hold that the appeal was not properly decided.
Accordingly, I accept this civil revision, set aside the judgment and decree under .Challenge and remand the appeal to the District Judge, Gujranwala, with the direction that he shall personally decide the appeal afresh and in accordance with law. While so doing, he shall decide the above question after allowing reasonable opportunity to the parties to produce evidence in support of their respective contentions."
After the aforesaid decision, learned District Judge, Gujranwala allowed the parties to produce the evidence. Respondents, examined as many as eight witnesses and also produced documentary evidence, while the learned Court examined two Court witnesses. The appellant only produced documentary evidence as Ex. R.1 and Ex.R. 1/1. Thus, on the basis of above evidence, learned Appellate Court came to the conclusion that the appeal is not barred by time. This judgment and decree of the learned Court in appeal dated 15.3.1985, has been assailed through the present second appeal.
5. Learned counsel for the appellant has argued that the suit land was not pre-emptiable. I am afraid, this plea cannot be entertained because in FAO No. 9 of 1968, this Court has already decided the above question, which was affirmed in LPA, No. 2 T/C/1981; the appellant did not further challenge the above decisions, before the Honourable Supreme Court, therefore, the appellant is precluded in law to re-agitate the same point.
6. The other submission of the learned counsel for the appellant is, that the suit is bad on account of partial pre-emption. It is stated that comparing the sale-deed and the mutation, with the contents of the plaint, it is clear that the respondents have omitted to pre-empt the sale of khasras Nos. 241, 252, 381 and 299 out of khatooni No. 68. Thus, it is a case of clear partial preemption, especially when the respondent did not offer to purchase the land, for the total consideration amount of Rs. 8,000/-, rather claimed the price as Rs. 4,000/-. It may be pertinent to state here that through a miscellaneous application C.M. No. 1/C/2001, the appellants has also sought amendment of the written statement, so as to add preliminary para No. 1 -A, to the effect that the suit of the respondent, is bad for partial pre-emption, because certain khasra numbers, as mentioned above, have not been mentioned in the plaint and to that extent, respondents have given up the right to pre-empt.
7. As regards the submission of partial pre-emption is concerned, suffice it to say that this objection was not taken in the written statement. The matter came up before this Court in FAO No. 9 of 1968 and LPA No. 21/C/1971 but no objection was ever taken that the suit is bad for partial pre- emption, It is for the first time that during the course of hearing of the appeal in the second round, after the decisions given by this Court, that the appellant raised the plea of partial pre-emption and that too without seeking any amendment in the written statement. This plea was rejected by the learned Court in appeal vide judgment dated 2.6/1981, though the appeal of the respondents was dismissed on the ground of limitation, they find C.R. No. 1082 of 1981, but the appellant did not file any cross objection, which he could competently file in view of the judgment reported as Zafarullah Khan and others vs. Faizulah Khan and others (PLJ 1 999 SC 1087). Even during the course of hearing of the above revision, the point of partial pre-emption was never orally agitated by the appellant, resultantly, as the question of partial pre-emption was conclusively settled by the learned ADJ vide judgment and decree dated 2.6.1981, therefore, the appellant through the present appeal, is not entitled in law to raise this point, It may be pertinent to state here that as per the settled law, no litigant is permitted to plead beyond the scope of his pleading; as the plea of partial performance has not been taken by the appellant in his written statement; moreover, there is nothing in this behalf in the grounds of appeal, resultantly, the Appellate Court set up a defence of partial pre-emption at this stage. The question of partial preemption is not a pure question of law, which the appellant can raise at any stage of the proceedings, rather it is a question of fact having legal consequences to follow. Therefore, when a dispute about a fact was not joined by the appellant at the appropriate time of the proceedings, it cannot be allowed to be raised now and treated as a pure legal issue. The appellant would be deemed to have waived their right to raise such plea, especially when considerable period of time has elapsed.
8. Even otherwise, I have perused the copy of the sale- deed and the plaint; in the deed, 22 khasras in total have been sold; the plaint also find mention of 22 khasras; it seems that in the sale-deed the numbers are written in urdu, but while writing' these in the plaint in English, some error qua the khasras numbers, has been committed. Moreover, in the plaint the total after of the land sold has been mentioned and from the averments it can undoubtedly be construed that the respondents were -pre-empting the whole sale and not a part thereof, It may be significant to mention here that the "respondents though initially disputed the sale price of Rs. 8,000/-, but conceded before the appellant Court during the course of hearing of the appeal, in the first round, and this facts is clearly mentioned in the judgment of the learned ADJ dated 2.6.1981. Therefore, the plea of the learned counsel for the appellant that as the respondents had offered Rs. 4,00t>/- as the price of the land and also omitted to mention certain khasra numbers, thus the suit is bad for partial pre- emption, looses its force.
9. Now adverting to C.M. No. 1/C/2001, whereby the appellant seeks amendment of the written statement, so as to include the objection about the partial pre-emption, suffice it to say, that though delay per se is not a reason to dismiss an application for the amendment of the pleading, but in the facts and circumstances of the case, where application has been moved after about 35 years, considering the request in the light of the reasoning given in preceding paragraphs, the delay in moving the application is fatal to the case of the appellant. Accordingly, the same is hereby dismissed.
10. On the main issue between the parties, whether the appeal find by the respondents was time- barred, the learned counsel for the appellant has argued that the judgment and decree .Was passed by the learned Civil Judge, Hafizabad on 20.9.1966. The respondents moved an application to obtain the certified copies of the judgment and decree on 23,9.1966 at Hafizabad, which was registered at serial No. 514 and the application was returned to the respondents oh 3.10.1966, to be moved at the District Headquarters, Gujranwala, where the file of the case had been consigned.
The respondents, thereafter, moved a new application at Gujranwala on 8.11.1966, which was registered at serial No. 3-281. The copy was delivered to the respondents on 17.12.1966 and the appeal was find on 10.1.1967, therefore, the appeal find by the respondents was beyond time, It is stated that the endorsement on {fie. Certified copy, of the judgment and decree issued to the respondents by Gujranwala Copying Agency and find alongwith the appeal, endorsing the particulars of the earlier application are fraudulent entries, made with an object to cover the period of limitation, It is also stated that as the application for the supply of the copy was not transmitted to Gujranwala by Hafizabad Copying Agency, rather it was returned on 3.10.1966, therefore, there was no question of specifying the previous number, etc. On the copy issued to the respondents by Gujranwala Copying Agency.
11. Learned counsel for the appellant by relying upon the Punjab Copying Agency, Manual Rule 1.16 argued that because the record of the case was consigned to DHQ Gujranwala therefore, it had become impossible for the Copying Agency, Hafizabad, to prepare the copy, resultantly, the application as per the above rule, could only be returned to the respondents and it could not be transmitted to Gujranwala. It is emphasized that neither the above rule nor. Any other rule of the Manual, envisages the transmission of the application by one Copying Agency, to another. The evidence led by the appellant in the shape of the Ex.R-1 and Ex.R-1/1 establishes beyond doubt that application of the respondents entered at serial No. 514, was returned to them on 3.10.1996. But learned Appellate Court below has ignored and overlooked such evidence, which has serious reflection upon the fate of the case.
12. Conversely, the learned counsel for the respondents stated that the application, which was moved by the respondents for the supply of the certified copy at Hafizabad was registered at serial No. 514, this application was never returned to the - respondents, rather it was transmitted by the Copying Agency, Hafizabad to the Copying Agency, Gujranwala, the respondent was delivered the copy on 17.12.1966 and accordingly, the appeal find, by excluding the period during which the application of the respondents remained pending at Hafizabad and Gujranwala is to be excluded from the limitation thus the appeal was within time, It is also submitted that the learned counsel for the respondents on the memo, of appeal had given a note that the application was originally find at Hafizabad on 23.9.1966, which was transmitted to Gujranwala Copying Agency and the copy was ultimately delivered to the applicant on 17.12.1966. Though this appeal was earlier decided and the matter came up till the High Court in FAO as also the LPA, but the appellant never took any objection at any stage that the appeal was time-barred, It is only after the decision given by this Court as aforesaid, that for the first time, the appeal was attacked as being beyond time. Moreover, the appellant had examined as many as eight witnesses to prove that he moved the application at Hafizabad on 23.9.1966; same was transmitted to Gujranwala Copying Agency, wherefrom the copy was ultimately, delivered to the respondent. The Appellate Court also examined two Court witnesses, who corroborated the plea of the respondent. No significant evidence was led by the appellant to contradict the above. The entry in the column of remark of the Register CD2 (Ex.R-IO that the application should be returned, has not been proved in accordance with law. It is neither signed by any competent person nor proved to be in the hand writing of any official of the Copying Agency, Hafizabad.
13. I have considered the arguments of the learned counsel for the parties. Admittedly, the decree has been passed by the learned Civil Judge at Hafizabad. The respondent could accordingly find an application for the supply of certified copies of the judgment and decree, at Hafizabad, which was admittedly moved on 23.9,1966 and was entered at serial No. 514. The case of the appellant is that this application was returned to the respondent on 3.10.1966, as per the remarks contained in Ex. R.1. I have perused Ex. R.1 and find that there is overwriting over the date end month. But the appellant has not imputed this to be the respondent. However, by carefully considering the same, it is clear that the application, was not returned to the appellant on 3.10.1966 as has been alleged by the respondent, rather the date is 3.11.1966. There is no signature of any competent officer about the return of this application and the remarks recorded in column that " does not show that infact, this was returned to the respondents on 3.10.1 966 or 3.1 1.1966, as the case may be. There is no evidence on the record produced by the appellant about the specific date on which, allegedly, the application was actually returned to the respondent. According to provisions of Rule 1.16 of the Copying Manual, the Copying Agency has two options, either to file the application, after being kept pending for 1 5 days or to return by registered post, if applicant paid extra fee for registered post or VVP. Admittedly the first option was not exercised by the Copying Agency, in consigning the application of the respondent, but as per case of the appellant, it was returned. However, nothing has been produced on the record, if such application was returned to the respondent, through registered post or VVP, as required by the said rule. There is also no other evidence on the record, produced by the appellant, if the application of the respondent was returned by hand through any official of the Copying Agency, Hafizabad and any acknowledgement for that purpose was procured from the respondent. If Copying Agency has failed to follow the rule in not returning the application to the respondents, as required by Rule 1. 16, and transmitted the same to the Copying Agency, Gujranwala; respondent cannot be held responsible for such omission, so as to be non- suited on the plea of limitation. Moreover, as I have already held that according to Ex.R-1, the document produced by the appellant on the record, the remarks are not dated 3.10.1966, rather it was allegedly returned on 3.11.1966. The respondents allegedly applied for the supply of the copy at Gujranwala, admittedly on 8.11,1 966, which was prepared and delivered to the respondents on 17.12.1966 and the appeal was find on 10.1.1966. According to Section 12 of the Limitation Act and judgment reported as PLD 1964 (W.P.) Pesh. 187, the time requisite for obtaining the copy shall be excluded from the period of limitation, therefore, in view of the time spent while the application was pending at Hafizabad and Gujranwala, the following position emerges. The decree was passed on 20.9.1966; respondents applied for copy on 23.9.1966, thus they lost two days of limitation; this application remained pending with Hafizabad Copying Agency till 3.11.1966, therefore, the period from 23.9.1966, till 3.11.1966, has to be excluded. The period started running against the respondents from 4.11.1966, the respondent according to the appellant applied for the copy at Gujranwala, on 8.11.1966. From this date the period of limitation again stopped, in between five further days were lost; the copy was prepared and supplied to the respondents on 17.12.1966, the period of limitation again commenced from 18.12.1966, the appeal was find on 10.1.1966, therefore, the period from 18.12.1966, till 9.1.1967, is to be added towards the limitation. This comes to 23 days. Calculating 23 + 5 + 2, are 30 days, therefore, the appeal of the respondents find on 9.1.1967, was within the period prescribed by Article 152 of the Limitation Act. {{URDU MISS}}
14. Now examining the controversy on the basis of other evidence on the record, it may be stated that due to lapse of time, much of the record has been destroyed. However, the important witness appearing in the case in AW-7, Habib-ur-Rehman, the Copying Examiner, posted at Gujranwala during the relevant period, who has stated about the checking of record; the official endorsement of the particulars on the copy of judgment and decree supplied to the respondents; he deposed that he has ticked marked the serial No. 514, dated 29.9.1966, pertaining to the application, which was moved by respondents at Hafizabad and also new serial No. 3281 and the date on which application was entered at Gujranwala i.e. 8.11.1966. Meaning thereby, that the copying officials at Gujranwala had duly checked the record, that the application was transmitted to the Gujranwala from Hafizabad. His statement has not been shattered in cross-examination. Besides, the counsel who had find the appeal on behalf of the respondents, has appeared as AW-6. Deposing about the note given by him on the memo, of appeal, which clearly shows that from the day one, it is the case of the respondents that they moved application at Hafizabad, which was transmitted to Gujranwala Copying Agency. But although being aware of this note, the appellant did not oppose the appeal on the plea of limitation, In the earlier round the appellant lost at the first appellate forum, on the question, whether the sale is pre-emptiable or not, they moved this Court in FAO and also lost in LPA, but never raised any objection, It is only after the remand of the case to the first Appellate Court, that the plea of limitation was raised, perhaps for the reason that because the main issue on which the appellants were banking, was held against them and thus an abortive attempt was made on their behalf to challenge the appeal as beyond time and it is thereafter that the remarks in CS-2 ) were interpolated. This inference find support from the statement of CW-2, who on a Court question, has stated as follows:- "About 10/12 days prior, this register was shown to me by Rehmat Ullah PW, at the shop of Nazar Muhammad, respondent. He had asked me to put my signatures on endorsement given in the end of column NO. 514. The position of the endorsement was the same, which is today I had refused to put my signature on that endorsement."
Nazar Muhammad, the appellant and was the respondent in the first appeal, thus it is clear from the above reproduction, that he has been' making efforts to try and get the signature of any official of the Copying Agency who were posted at Hafizabad during the relevant time, so as to confer some authenticity to the remarks qua return of respondents' application from Hafizabad. I have no hesitation to hold that endorsement on Ex.R-1, was made afterwards through interpolation in the record by some unauthorized person and thus has no significance or legal value.
As learned counsel for the appellant has not been able to point out any serious misreading or non- reading of the evidence on record by learned Court in appeal, which could have any reflection upon the finding given by the Court about the limitation in filing the appeal of the respondents.
Such finding of fact, being not result of any amiss, in reading thereof, cannot be set aside.
In the light of above, I do not find any merit in this appeal, which is hereby dismissed with costs throughout.