JUDGMENT MUHAMMAD KHALID ALVI, J.- The brief facts of the case are that the appellants filed a suit against one Muhammad Ramzan-s/o Nibahu for specific performance of an agreement to sell.
The same was decreed by Civil Court on 17.7.1978 in consideration of Rs.8000/-. This decree treating to be sale was. Sought to be pre-empted by respondents through a suit filed on 25.10.1979. The superior right claimed by respondents are that they are collateral of the vendor apart from being co-sharer and owner in estate. However, vide statement dated 6.3.1980 the respondents abandoned their superior right of being co-sharer and owner in estate and only contested their suit with respect to being collateral of the vendor. The suit was contested by the appellants. Parties led their respective evidence and Learned Trial Court vide judgment and decree dated 24.10.1985' decreed the suit of the respondents. 'This judgment was assailed through an appeal which was also dismissed vide Judgment and decree dated 13.5.1989.
2. It is agreed by Learned counsel for the parties that the only live issue in this appeal is with respect to the superior right of respondents.
3. Learned counsel for the appellants contends that Learned Courts below have held the respondents to be collateral of the vendor without adverting to the material evidence on record, It is further submitted that two Courts below have not attended to the evidence of the appellants according to which they were tenants at the time of sale, therefore, they were having a superior right than the respondents.
4. On the other hand Learned counsel for the respondents contends that PW.2 Allah Bukhsh had stated the relationship of respondents/plaintiffs with Vendor Muhammad Ramzan s/o Nibahu and this statement was not subjected to any cross-examination by appellants; that DW. 1 Wahid Bukhsh one of the vendees appeared as witness but he did not deny at all the relationship of the plaintiffs/respondents with the vendor; that the findings of the Learned Trial Court with respect to the relationship of respondents with the vendor was neither specifically challenged before the lower Appellate Court nor the same was argued. It is finally submitted that the main thrust of the appellants in defending their case before both the Courts below was that they were tenants over the land in suit at the time of sale, which they could not because this defence was not pleaded by them in their written statement.
5. I have considered the arguments of Learned counsel for the parties.
6. Para 3 of the plaint filed by respondents contains the claim of the respondents with respect to their superior right. The appellants replied in their written statement in the following words:- % " /3/Z Ji {{Urdu text }} Meaning thereby that the appellants never took the plea that they were tenants at the time of sale of the property in dispute, therefore, any evidence led by them to prove their tenancy cannot be read as it goes beyond their pleadings, reference can be made to PLJ 1996 Supreme Court 1803 and 1988 SCMR 1696.
One of the respondents/plaintiffs appeared as PW.2 and stated that the respondents are related inter se and also to the vendor Muhammad Ramzan s/o Nibahu and they ail belong to one family.
This statement was not subjected to cross- examination, therefore it will be presumed that the relationship of the respondents/plaintiffs inter se and also their relationship with the vendor was admitted by the appellants. Reference can be made to PLD 1967 Lah. 1138 and 1994 MLD 754.
Wahid Bukhsh one of the vendees appeared as DW.
1. He did not utter even a single word to deny the relationship of the respondents/plaintiffs with the vendor. Although the appellants had challenged the finding of issue No. 4 i.e. Superior right in their memorandum of appeal , before the Learned lower Appellate Court but their main thrust was that they are tenants of the land in dispute. Even the question of relationship of respondents with vendor was not argued before the lower Appellate Court. It appears from the record that the appellants had been trying throughout to defend their Case only on the ground that they. Are tenants over the suit land at the time of sale but unfortunately this plea was never raised by them in their written statement, therefore, same was neither entertained by two Courts below nor the same can be attended in this second appeal.
Ex. P.l is pedigreet-able of "Khandan No. 2 Baluch Palia". This document is in two parts. Both parts carry the same description of the family. In one part two pre-emptors/respondents are connected with each other while in the second part the name of the vendor is mentioned. Since both these parts of Ex. P.3 relate to same family i.e. "Khandan No. 2 Baluch Palia" of Mauza Beerband, therefore it is evident from this document as well that respondents are related to the vendor.
7. For what has been stated above, I find no merit in the appeal which is accordingly dismissed. No order as to costs.