Muhammad Ismail, respondent filed suit for possession through pre-emption in the Court of learned Civil Judge, Banda Daud Shah against the petitioners/defendants. The said suit was resisted by the petitioners by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties partially decreed the suit in favour of respondent/plaintiff vide judgment and decree dated 16-10-1994. Feeling aggrieved with the said judgment and decree, the petitioners filed appeal in the Court of learned District Judge, Karak which was dismissed vide judgment and decree dated 16-4-1995. Hence this revision petition.
2. Mr. Abdul Sattar Khan, the learned counsel representing the. Petitioners argued that although there was overwhelming evidence available on record regarding the plea of estoppel raised by the petitioners/defendants but the Courts below failed to properly appreciate the said evidence, hence arrived at wrong conclusion.
3. It was also argued .That the suit filed by the respondent/plaintiff was hopelessly barred by time, but this fact was also not properly appreciated by both the Courts below.
4. It was further argued a that Talbs were not made in accordance with law by the respondent/plaintiff but the Courts below failed to appreciate the legal position in this regard properly.
5. The respondent/plaintiff having exhausted his share in favour of the petitioners was no more co- sharer/co-owner in the property in dispute, therefore, he had no right of pre-emption at all.
6. On the other hand Mr. Raham Badshah Khatak, the learned counsel for the respondent argued that there was no settlement reached between the parties in the year 1987. There is nothing on record except the bald statement of Gul Rehman's to prove on record that there was any settlement between the parties regarding transfer of land in Khasra No.4211 in lieu of land acquired for Sessions Court premises. Had there been any settlement between the parties the same would have been reduced into writing and the petitioners would have taken a specific plea in their written statement. Since the petitioners did not take up the plea of settlement in their written statement, therefore, no specific issue was framed by the leaned trial Court. The question of estoppel would not arise because the plaintiff did not participate into sale proceedings at the time of attestation of mutation.
7. It was also argued that the suit of the plaintiff was in time as the period of limitation would start from the date of attestation of mutation and the respondent/plaintiff had filed the suit within time after the attestation of mutation.
8. It was further argued that the respondent/plaintiff had performed Talabs strictly in accordance with law which has been proved by him and upheld concurrently by the Courts below.
9. I have heard the learned counsel for the parties and perused the record carefully.
10. The argument of the learned counsel for the petitioners that respondent/plaintiff was estopped to bring the present suit because parties had arrived at private settlement in the year 1987 when landed properties comprising Khasra Nos.4203 and 4204 were acquired by Government for construction of Sessions Court premises/residences. The petitioners who were owners to the extent of 1/3rd share in the said Khasras had relinquished the amount of compensation in favour of other co-owners with the clear understanding that those shareholders shall transfer their shareholdings in Khasra No.4211 in favour of petitioners. All the other co-owners/co-- sharers of Khasra No.4211 transferred their land either by way of mutations or after decision of suit for specific performance but Rambail could not transfer his share as he was away in Saudi Arabia. The transfer of the suit- land through Mutation No.1712 attested on 12-12-1988 was according to the settlement of 1987. Since the respondent/plaintiff was party to that settlement, therefore, he was estopped to file the suit in hand. This argument of the learned counsel has no force at all because the perusal of the written statement filed by the petitioners/defendants shows that no such plea of private settlement was ever taken by the petitioners in the written statement filed before the learned trial Court. No doubt in preliminary objections only plea of estoppel was raised, but said objection was taken as a routine. If the petitioner's defence was that the transfer of the suit property by Rambail was due to the private settlement reached in 1987, they were under obligation under Order VIII, rule 2, C.P.C. To raise in their written statement, all points of law or fact which could show that the suit filed by respondent/plaintiff was not maintainable due to law of estoppel. It is well-settled that as per provisions of Order VIII, rule 2 and Order XIV, rule 1, C.P.C. That the' defendants were obliged to particular is e in their defence all points either of facts or of law which they desired to take up. A new , point the decision on which depends upon: facts with regard to which the other party had no opportunity to place materials on record in support of its respective contentions, cannot be permitted to be raised at late stage in the suit unless a fresh opportunity is given to the parties against whom the point is raised, to meet the same by placing on record materials I relevant to the decision on the point. If a specific point is not raised at all in the written statement, the Court cannot act on it, even a new plea cannot be raised for the first time in arguments before the trial Court what to I speak of raising the same for the first time before the revisional Court. Reliance in this regard can safely be placed on dictum laid down in Ghulam Mustafa v. Haji Mian Muhammad and another PLD 1969 Pesh.241.
11. In the case in hand as mentioned above, neither the plea of settlement between the parties was taken specifically in the written statement nor is there any other material on record except the solitary statement of Gul Rahman (D.W.1). The petitioners/defendants did not bother to examine any other person to prove that any settlement had reached between the parties that Rambail shall transfer his shareholdings in Khasra No.4211 in favour of petitioners. The burden to prove the plea of estoppel was on the petitioners but they miserably failed to prove the sate. In pre-emption suits usually the estoppel is claimed when the pre-emptor either takes part in the sale transaction or is instrumental in any manner in the sale transaction which is pre-empted by him. There is nothing on record to indicate that the respondent/plaintiff ever participated in the sale proceedings through which Rambail transferred land in favour of petitioners. Therefore, I am clear in mind that the respondent/plaintiff was not estopped to exercise his right of pre-emption by filing suit.
12. The argument of the learned counsel that the suit filed by the respondent/plaintiff was barred by time because the transfer of land in fact had taken place in the year 1987 at the time of arriving at private agreement but it was formally transferred vide Mutation No. 1721 dated 12-12-1988, therefore, the limitation would start from the year 1987 has no force at all. While discussing the first argument of the learned counsel for the petitioner regarding the plea of estoppel, it has been held in the supra paragraph that petitioners failed to prove that any private settlement had reached between the parties or not. Even if for the sake of arguments it is presumed that the settlement between the parties was reached in the year 1987 even then the cause of action would accrue to pre-emptor on the attestation of mutation which was final order of completion of sale transaction.
Reliance in this regard can be safely placed on judgments in Gharib Shah and others v. Zarmar Gul PLD 1984 SC 188 and Tajul Mulk v. Mst. Zaitoon Bibi and 3 others PLD 1994 SC 356.
13. Keeping in view the dicta laid down by the august Supreme Court of Pakistan the cause of action accrued to the respondent/plaintiff from the date of attestation of mutation, therefore, the suit filed by him was well within time.
14. The argument of the learned counsel for the petitioners that Talks were not made in accordance with law also has no force at all. The respondent/plaintiff through reliable evidence on record has proved that not only Talb-e-Muawthibat but Talb-e-Ishhad was also made in accordance with law. The Courts below have rightly appreciated the law in this regard and I find no reason for interference with the same.
15. The other argument of the learned counsel for the petitioners that the respondent/plaintiff had exhausted his share in Khasra No.4211, therefore, he was no more co-sharer/co-owner in the said Khasra has also no force. Habibullah Patwari Halqa had appeared as P. W .1, who stated that the respondent/plaintiff was left with 14 Marlas of land. He was not further cross-examined as to how the respondent/plaintiff was left with 14 Marlas when he had already transferred his entire shareholdings in favour of petitioners. None cross-examining the Patwari Halqa by petitioners amounts to admitting his statement as correct.
The above discussion leads me to an irresistible conclusion that the Courts below had rightly appreciated the evidence available on record while passing partial decree in favour of respondent/plaintiff. I have not been able to find out any misreading/non --reading of evidence or any material irregularity or any jurisdictional error or defect in the impugned judgments/decrees warranting interference into the concurrent findings of facts recorded by the Courts of competent jurisdiction. I, therefore, dismiss the revision petition in hand alongwith C.M. No.343 of 2002 with no orders as to costs.