1. ' RAJA MUHAMMAD KHURSHID KHAN, J.-In this petition special leave to appeal is sought to impeach the judgment and decree of the learned Single Judge. Of the High Court passed on 22-9-1975 whereby the petitioners' appeal was dismissed with costs.
2. ' Land measuring four kanals under Survey No, 175 was transferred through a registered sale-deed to Khadam Hussain vendee-non-petitioner on the 7th of February 1967 for a consideration of Rs, 8,000. Petitioners-plaintiffs brought a suit in the trial Court for pre-emption of the land sold on the ground that they being co-sharers in the "Khata", of the land in dispute are equipped with a superior right of purchase in preference to Khadam Hussain Khan vendee who has no estate in village "Namb Paprian" wherein the suit land is situated. The trial Judge as welt as the District Judge disallowed the petitioners' claim holding that they have failed to established the claimed right and that Khadam Hussain vendee had proprietorship in the village estate before he purchased the land in dispute.
3. ' The learned Judge of the High Court in second appeal by the petitioners (plaintiffs) by his order dated 22-9-1975 concurred with the finding of the subordinate Courts and disallowed the appeal.
4. ' Special leave to appeal is now sought for, solely, on the ground that a material issue arising out of the pleadings of the parties was omitted and the omission had prejudiced the case of the petitioners. The grievance of the learned counsel for the petitioners is that the land in dispute under Survey No, 175 alongwith land under Survey No, 178 wherein they are admittedly co-sharers it the "Khata" originally fell under Khewat No, 40 as is evident from the entries of the copy of the Jambandi 1962 Bit. And that the Khewat of the land under Survey No, 175 shall be deemed to be the same even up to the time of sale deed and that the entry of land under Survey No, 175 at a later stage in the "Khasra-Girdawari" of the year 1964-65, as under Khewat No, 56 is immaterial. Thus In his wisdom, there should have been a specific issue to the effect, whether the land in suit under Survey No, 175 continued to be under Khata No, 40 even up to the sale-deed, was necessary for the correct adjudication of the rights of the parties.
5. ' We are afraid, the contention of the learned counsel for the petitioners cannot be digested.
6. ' Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. In the instant case before us, the petitioners claim to be clothed with prior right as being co- sharers in the "Khata" of the land in suit. The averment in the plaint was denied by the respondent.
7. The issue framed is: " Whether the plaintiff has the prior right of land in dispute as compared with defendant-vendee."
8. ' This is a specific issue calling upon the petitioners to prove that they were co-sharers in the "Khata" of the land in suit at the time of the sale-deed. The issue is self speaking and comprehensive, sufficient to make the parties alive to put in their proof in support and rebuttal of the issue. The petitioners (plaintiffs) were required to prove that they were cc-sharers in Khewat No, 56 at the time of sale and they were also required to prove that the vendee-nonpetitioner had no property at that time in village "Namb Papilla" or at least under this Khewat number. Precisely speaking the issue now demanded is the evidence which could be availed of in proof of the issue framed on the disputed point of right of prior purchase and obviously evidence to be produced does not form basis of an issue.
9. ' On the file, we have two copies of Jamabandis, one of 162 Bik. And the other being of 1964-65 A. D.
10. The copy of the Jamabandi 1962 Bik. Has no relevancy whatsoever as the land is sold practically forty years after its preparation and naturally we have to take the latest Jamabandi of 1964-65 A.
11. D. Into account. This document shows that Khewat No, 56 out of which land in suit had been sold is exclusively owned by vendor and the appellants are not co-sharers in it. In the plaint it has been stated that the vendee lives in another village whereas the appellant lives in the village wherein the property in dispute is situated. Had it been so, the appellant would have been entitled to a decree for pre-emption but actually that is not the position. Appellants own witnesses Gulab Khan and Jumma have repudiated him in saying that Khadam Hussain vendee not only lives in the village but also possesses land over there. We have referred to the evidence to make us believe that both the Nudes were alive about their respective stands and no prejudice whatsoever was caused to any of the parties. Therefore, the contention of the learned counsel that there was no specific issue about the fact that the land in suit alongwith the land under Survey No, 178 being devoid of any force is repelled.
12. ' In the instant case, our view is that there was no necessity of claiming any issue except the issue framed by the trial Court. Besides, we also entertain the belief that it is also essential for the parties to draw the attentio of the Courts to the omission of an issue and if an issue is of pressed o behalf of any of the parties at the time of framing of the issues, it must, in the circumstances, be held to have been waived. In the instant case, said earlier, no issue was necessary and if at all a specific issue two have been necessary it was abandoned. This inference is further strengthen by the fact that the trial proceeded fora considerable long time yet nothing was said or done on behalf of the petitioners to claim any further issue.
13. ' No valid case is made out for interference in the Judgment of the High Court. The petition thus stands dismissed with costs.