' Through the filing of this regular second appeal, the appellants/defendants have called in question the judgment and decree, 'dated 3-2-1993, whereby the learned Additional District Judge, Sargodha, dismissed the appeal, filed by the appellants and maintained the judgment and decree dated 13-3-1986, through which the learned Civil Judge, Sarogodha, decreed the suit, filed by the respondents.
2. Facts, leading to the filing of the present appeal are that Mst.Phoolan Rani was the owner of the land measuring 173/=3/4 Kanals (elaborately described in the plaint), she alienated the same in favour of the appellants and respondents Nos.2 to 6 for a consideration of Rs,3,00,000 through a registered sale-deed dated 30-4-1980. On coming to know, Madan Lal respondent No,1 and Barsati Lal (since deleted) filed a suit for possession through pre-emption on the ground of collateralship and being co-sharer in the joint Khata in the suit land. The sale price was also challenged by the pre-emptors as according to them, the actual price was Rs,1,60,000. The suit was contested by the appellants and respondents Nos. 2 to 6. By way of filing the written statement controverting the allegations made in the plaint, apart from the fact that certain preliminary objections were also taken. On 19-12-1986, Barsati Ram withdrew his claim, resultantly, his name was deleted and as such, only plaintiff, which remained in the field, was Madan Lal. The learned Civil Judge after framing the issues and recording the oral as well as documentary evidence of the parties, decreed the suit for consideration price of Rs,3,15,700 in favour of Madan Lal vide judgment and decree dated 13-3-1986. The appellants and respondents Nos.2 to 6 challenged the said judgment and decree before the learned District Judge, however, the memorandum of appeal was returned, to the appellants for its presentation before the proper Court as according to the learned District Judge, the subject-matter was beyond the pecuniary jurisdiction of the District Court.
Subsequently, on a review petition, filed by the appellants against the order, challenging the return of the memorandum of appeal, the same was accepted and, thus, the appeal was re-admitted to regular hearing and thereafter the learned Additional District Judge, dismissed the appeal and maintained the judgment and decree, dated 13-3-1986 passed by the learned trial Court, vide judgment and decree dated 3-2-1993, hence, the present second appeal.
3. Learned 'counsel for the appellants with reference to section 15(b), secondly of Punjab Pre- emption Act, 1913, has contended that the respondent No, /plaintiff was neither the co-sharer nor the agnates, therefore, he has got no superior right to pre-empt the sale, which plea has not been considered by both the Courts below and as such judgments and decrees rendered by both the Courts below are not sustainable under the law. Conversely, the learned counsel for respondent No,1 has submitted that the claim of the plaintiff/respondent No,1 rests on section 15(c), fourthly of the aforesaid Act, therefore, both the judgments were, passed in accordance with law. He has further A submitted that the concurrent findings of fact arrived at by both the Courts below are not liable to be interfered by this Court.
4. So far as the solitary ground raised by the learned counsel for the appellants is concerned, I have perused the written statement, filed on behalf of the appellants and respondents Nos. 2 to 6, contents whereof amply manifest that no such plea was taken by the appellants before the learned trial Court in their written statement. Upon the examination of the record it appears that the appellants throughout during the pendency of the suit never agitated this plea by filing any miscellaneous application. Admittedly, the appellants and respondents Nos.2 to 6 never filed any application seeking amendment of their written statement, even up to the level of this Court, as to incorporate the plea now raised by them.
5. Upon the examination of the memorandum of appeal filed before the learned District Judge, it is discernible that the appellants did not raise this plea even in the memorandum of appeal. So much so that even at the stage of arguments, the aforenoted plea was not taken before the learned Additional District Judge, as I do not find any mention about this plea even in the judgment of the learned Additional District Judge. There cannot he any cavil to the proposition that the parties are bound by their pleadings and cannot depart from it, specially at the appeal stage, and also precluded from raising any new plea at the stage of second appeal which is inconsistent from the one set by them before the Courts below. In the instant case, the appellants and other respondents failed to build up a case on the basis of provisions of section 15(b), secondly of Punjab Pre-emption Act, 1913, therefore, they are estopped and precluded from raising such a plea at the stage of second appeal. In view of this, the contention raised by the learned counsel is devoid of any merits and without any legal foundation.
6. It is settled law that second appeal lies only on the grounds mentioned in section 100, C.P.C. And not on question of facts. The learned counsel has not been able to show that how his second appeal falls within any of the grounds mentioned in section 100, C.P.C. No error of law has been committed by both the Courts below while arriving at concurrent findings of fact.
7. I have examined the judgments rendered by both the Courts below which are legal, unexceptionable, apt to the facts and circumstances of the case and do not call for any interference by this Court at the stage of second appeal. It is settled law that the concurrent findings of fact are not liable to be interfered by this Court in exercise of its appellate jurisdiction conferred on it under section 100, C.P.C. Reliance is placed on Abdul Ghani v. Muhammad Akhtar (1988 SCM R 801), Muhammad Shafi and another v. Sher Ali (1970 SCM R 510) and Maran Bepari v.
Madan Gopal and 4 others (PLD 1969 Supreme Court 617).
8. Seeing from any angle, the appellants have failed to make out any case justifying the interference, in both the judgments, by this Court in this second appeal, therefore, I am not inclined to interfere in both the judgments which are concurrently in nature.
9. The upshot of the above discussion is that the appeal is devoid of any merits, thus, the same is dismissed, leaving the parties to bear their own costs.