 
 
IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE MAQBOOL BAQAR 
 
 
CIVIL APPEALS NO.833 TO 835/2006 AND CIVIL REVIEW 
PETITION NO.117/2006 IN CIVIL PETITION NO.2535/2001 
(Against the judgment dated 4.7.2001 of the Lahore High Court, Bahawalpur Bench, 
Bahawalpur passed in RSA Nos.123, 102 and 122/1971 – On review of this Court’s 
order dated 18.5.2006 passed in C.P.No.2535/2001) 
 
 
1. 
Jan Muhammad etc. Vs. Mst. Sakina 
Bibi etc. 
 
In CA 833/2006 
2. 
Jan 
Muhammad 
etc. 
Vs. 
Mst. 
Sughran Begum etc. 
 
In CA 834/2006 
3. 
Mst. Jiwani etc. Vs. Riazul Hassan 
etc. 
 
In CA 835/2006 
4. 
Malang Khan (decd) through LRs Vs. 
Mst. Sughran Begum (decd) through 
LRs 
 
In CRP 117/2016 
 
For the appellant(s): 
Ch. Mushtaq Ahmed Khan, Sr. ASC 
Mr. M. S. Khattak, AOR 
(In CAs 833 to 835/2006) 
Nemo 
(In CRP 117/2006) 
 
 
For the respondent(s): 
Ex-parte 
(In CA 833/2006) 
Nemo 
(For respondent No.1 in CA 834/2006) 
Nemo 
(For respondents 33, 34, 36, 43, in CA 835/2006) 
Ex-parte 
(For other respondents in CAs 834 & 835/2006) 
Not represented 
(In CRP 117/2006) 
 
 
Date of hearing: 
03.01.2017 
… 
ORDER 
MIAN SAQIB NISAR, CJ.- These appeals, with the leave 
of the Court, entail common facts and question of law. The matter 
has its genesis in pre-emption suits initiated by the predecessors-in-
C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 
 
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interest of the respondents against the predecessor-in-interest of the 
appellants pre-empting the sale concluded vide sale deed executed on 
23.7.1966 and registered by the registering authority on 27.6.1968. 
The suits were filed on 25.4.1968 and 30.7.1968 (note:- as mentioned in 
the consolidated judgment of the learned Trial Court). The appellants as 
vendees resisted the suit on the point of limitation claiming that the 
period of limitation would commence from the date of execution of 
the sale deed and not from its registration, thereby rendering the 
suits time-barred; they also challenged the superior right of pre-
emption of the respondents-plaintiffs. After framing issues and 
recording evidence the learned Trial Court vide consolidated 
judgment and decree dated 17.7.1969 was pleased to decree both the 
suits. It held that they were within time for the starting point of 
limitation was the date of registration of the sale deed and not the 
date of its execution; the respondents’-plaintiffs’ superior right of pre-
emption was categorically recognized. On appeal, this judgment and 
decree was reversed and the suits were dismissed on the ground that 
the two rival pre-emptors did not possess a superior right of pre-
emption in respect of the suit property as against the appellants. 
Revision petitions by the respondents were accepted and the learned 
High Court vide impugned judgment categorically held that the 
period of limitation would start from the date of registration of the 
sale deeds rather than execution thereof; and that the plaintiffs had a 
superior right of pre-emption. Leave in these cases was granted vide 
order dated 18.5.2006 in the following terms:- 
 
“With a view to examining the contention as to whether 
sale of right to cultivate amounts to sale of land 
C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 
 
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amenable to pre-emption leave to appeal is granted. 
Meanwhile status quo as to possession be maintained.”  
 
2. 
 
Learned counsel for the appellants argued that according 
to the provisions of Section 47 of the Registration Act, 1908 a sale 
deed would operate from the date of its execution and not 
registration. This point has already been determined in the judgment 
of this Court rendered in Civil Appeal No.540-L of 2009 titled Meraj 
Din and another Vs. Muhammad Sharif and anotaher in which it 
was held that the starting point of limitation shall be the date of 
registration of the sale deed and not the date of execution. The 
relevant part of the judgment reads as under:- 
 
“In those cases where possession has not been delivered 
and/or the sale deed has been executed but not 
registered as yet, obviously a pre-emptor would have no 
notice that sale had taken place, thereby enabling him to 
exercise his right. In those cases the first part of Article 
10 of the Limitation Act would have no application, 
rather the case(s) would fall within the second part 
thereof beginning from the word OR “where the subject 
of the sale does not admit of physical possession, when 
the instrument of sale is registered.”  It is instructive to 
remember that a document required to be registered can 
be presented to the registrar within four months from the 
date of its execution as per Section 23 of the 
Registration Act. Thus for example, if a document is 
executed on 1.1.2000 and is presented for registration 
on the last date of the four months allowed for the 
presentation thereof and it takes a further one month to 
be registered according to the law, in this manner about 
five months may be lost and yet the pre-emptor would 
have no notice of the sale; the right of the prospective 
pre-emptor to file a suit within a period of one year 
C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 
 
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cannot thus be curtailed by excluding this whole period 
from the calculation which is what would happen if we 
took the date of execution of the sale deed to be the 
starting point for purposes of limitation; further the 
provisions of Section 47 of the Registration Act cannot 
be read into the clear language of Article 10 of the 
Limitation Act which specifically mandates “when the 
instrument of sale is registered” meaning thereby that 
limitation begins to run from the date of the 
registration.” 
 
Be that as it may, this was not a point on which leave was granted. 
Learned counsel has not pressed the point on which leave was 
granted, rather he has conceded that cultivation rights can be sold 
and are therefore/thereafter pre-emptible.  
3. 
 
Learned counsel for the appellants has instead raised an 
absolutely new point today, stating that, according to the notification 
No.196-B dated 28.2.1944 issued by the Government of Punjab (the 
notification) no right of pre-emption shall exist in any local area to 
which the Colonization of Government Lands (Punjab) Act, 1912 (the 
Colonization Act) has been or may thereafter be made applicable, 
therefore, the land in question, falling within the colonization area 
being a part of the Bahawalpur District, the right of pre-emption 
cannot be exercised by the respondents as per the provisions of 
Section 8(2) of the Pre-emption Act, 1913 (the Pre-emption Act). He relied 
upon the judgments reported as Muhammahd Siddique and others 
Vs. Muhammad28 Sharif and others (2012 SCMR 1387) and Abdul 
Majeed through L.Rs. and others Vs. Sher Din through L.Rs. 
(2015 SCMR 620). When confronted with the fact that leave was 
never granted on this point, learned counsel argued that this being a 
pure question of law, the Court could always decide the matter on the 
C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 
 
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basis thereof regardless of whether or not leave had been granted on 
that point. This question lies at the root of the case the Court 
confronts today. To decide whether a new point can be raised by the 
appellants’ counsel today which was neither agitated at any stage of 
the proceedings nor a ground set out in the memo of appeal and for 
which leave was not granted we feel it is expedient to evaluate the law 
on the subject. In this context Order XIX Rule 5 of the Supreme 
Court Rules, 1980 (the Rules) prescribes “The appellant shall not, without the 
leave of the Court, rely at the hearing on any grounds not specified in his petition or 
appeal and the concise statement”. In the judgment reported as Abdul 
Hameed and others Vs. Muzamil Haq and others (2005 SCMR 
895) this Court held:- 
 
“18. 
Coming to the objection of respondent's 
learned counsel that since question of waiver was not 
raised before the High Court and it has not been 
specifically urged in the memo. of appeal before this 
Court, therefore, the appellants' learned counsel is 
estopped to raise this point we feel that this objection 
in the facts and circumstances of this case has no 
force firstly because before the High Court it was the 
respondent No.1 who had filed the appeal and there 
was no occasion for the appellants to raise this issue 
and since the suit had been dismissed by the first 
Court of appeal only on Issue No.1. The High Court 
were touched this issue and reversed the finding on 
Issue No.4. Secondly, in terms of Order XIX, rule 5 of 
 the Supreme Court Rules, 1980 this Court has 
discretion to allow an appellant to raise any ground 
not specified in the memo. of appeal. The said Rule 
reads as under:-- 
 
"(5) 
The appellant shall not without the leave of the 
Court, rely at the hearing on any grounds not 
C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 
 
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specified in his petition of appeal and the concise 
statement." 
 
The same question (whether a new point may be raised before the Apex Court) was 
considered in the case reported as Mst. Shamim Akhtar Vs. Syed 
Alam Hussain and others (1975 SCMR 16) and this Court after 
noting the practice of the Privy Council and of this Court (note:- the Rules 
were not in vogue at that time) came to the following conclusion:- 
 
“It is no doubt true that the general practice of this 
Court following the Privy Council practice, has been as 
suggested by the learned counsel; but this is not an 
inflexible rule, and there may well be cases in which this 
Court, in the interest of justice, may be constrained to 
depart from this practice, although such cases will, no 
doubt, be extremely rare. This Court has undoubtedly 
the power, under the Constitution itself, to do complete 
justice and, therefore, it has never tied itself down in 
such a manner as to deprive itself of this power… It 
would thus appear that it is not correct that this Court 
has never departed from this rule of practice. It cannot, 
therefore, be maintained that any and every departure 
from this rule no doubt a salutory rule-would result in 
the exercise of a jurisdiction not possessed by the Court 
and thereby constitute an error apparent on the face of 
the record. The jurisdiction is there; but whether, and in 
what circumstances, the Court will exercise it, is an 
entirely different matter.”  
(Emphasis supplied) 
 
In Dr. Zulfiqar Haider Vs. Riaz Mahmud (PLD 1992 SC 238) this 
Court came to the following conclusion:- 
 
C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 
 
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“It is true that a pure question of law which does not 
involve an inquiry into facts, even if it is raised for the 
first time, can be considered by this Court. But this 
concession is subject to the condition that leave to raise 
and argue such a point must be granted by this Court. In 
other words, even a pure question of law, which was not 
raised earlier, can be canvassed only by the leave of this 
Court.”  
(Emphasis supplied) 
 
In Gatron (Industries) Limited Vs. Government of Pakistan and 
others (1999 SCMR 1072) and Caltex Oil (Pakistan) Ltd. Vs. 
Collector, Central Excise and Sales Tax and others (2006 SCMR 
1519), the same principle has been reaffirmed adding that it is the 
duty of the Court to apply the correct law to meet the ends of justice. 
Furthermore, in The State through Advocate-General, Sindh High 
Court of Karachi Vs. Raja Abdul Rehman (2005 SCMR 1544), this 
Court held that:- 
 
“10. After going through the aforesaid cited cases, the 
conclusion or the inference which is to be drawn is that 
the arguments at the appellate stage would in normal 
and in ordinary course governed by the leave granting 
order and any question or point not referred to in the 
leave granting order for consideration would not be 
permitted to be agitated and considered at the stage of 
final arguments of the appeal. However, this Court in 
the case of Khushdil and 3 others v. The State PLD 1981 
SC 582 pronounced that this Court in exercise of its 
power to do complete justice would be competent to 
examine points other than those on which leave was 
granted. In view of the pronouncement of this Court it is 
to be noted that there is no rigid on the established rule 
relating to the power of this Court to allow raising of a 
question or point on which leave to appeal was not 
C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 
 
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granted and normally or in ordinary course it would not 
permit raising of point/question not mentioned in the 
leave granting order but in exceptional cases for doing 
complete justice, it would permit or allow the appellant 
to agitate a point/question not mentioned in the leave 
granting order.” 
 
We are clear in our minds that the appellants do not have a right to 
raise an absolutely new plea before this Court and seek a decision on 
the basis thereof. Nor can such plea be allowed to be raised and the 
case decided accordingly as a matter of course or right on the pretext 
of doing complete justice. The leave of this Court in this context is 
mandatory but the considerations for the purposes of granting leave 
to raise a new point depend upon the facts and circumstances of 
each case. This Court has the discretion to grant leave at the time of 
hearing an appeal in which leave has been granted on a different 
point(s) and to consider such point of law, including for instance the 
question of inherent jurisdiction, undoubtedly being a pure question 
of law; even if not earlier taken up in any proceedings including those 
before the Supreme Court. This could very well apply to the point of 
limitation too where such plea was not dependent upon any factual 
determination. However, those cases which require a factual 
foundation and adjudication for the purposes of settling a legal issue 
cannot be said to be pure questions of law and the same cannot be 
allowed to be raised before this Court for the first time. In the context 
of the rule supra we have examined the point raised by the learned 
counsel and the notification and the judgments upon which reliance 
has been placed; suffice it to say that in order to attract the said 
notification the foundational question is whether the property in 
issue is situated in a colony area or not. This foundational fact was 
C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 
 
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required to be pleaded and determined if the appellants wanted to 
defeat the pre-emption right of the respondents on this ground, but 
from the present record it is clear that nothing of the sort was ever 
done or attempted to be done. From the learned Trial Court up till 
this Court no opportunity was availed, nor any exercise carried out to 
seek any amendment in the written statement to join an issue in this 
context, nor was this point raised in the memo of appeal etc. 
Therefore, the argument that the plea now sought to be raised is a 
pure question of law is absolutely unfounded and misconceived. As 
regards the reliance placed upon Abdul Majeed’s case (supra), it may 
be mentioned that the defendants of that case (the vendees) in their 
written statement took up the plea that the property in question was 
situate in a colony area and, therefore, the plaintiffs did not have the 
right of pre-emption. Accordingly an issue was framed in this regard 
as is clear from the judgment of this Court when it mentions “The said 
suit was resisted. On the divergent pleadings of the parties, issues were framed, 
including Issue No.1 as to whether the land in dispute was not pre-emptable (sic)…” 
Furthermore, this Court gave a factual finding in that case based 
upon the consideration of evidence, particularly the statement of DW-
1, the Patwari that “…Chak No.21-A/NP was carved out from three existing 
basties and is within "the Colony Area", In the Revenue Record, the owner was 
identified as "Sarkar Dault Madar" as is evident from Exh.D-10”. However, in 
the instant cases, this factual aspect was never addressed in the 
defence of the appellants and therefore the notification and Section 
8(2) of the Pre-emption Act are of no avail to them. The point now 
raised is not a pure question of law and, therefore, we decline to 
grant leave to the appellants to raise this plea at this stage of the 
proceedings before this Court for the first time. These appeals are 
C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 
 
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dismissed. As regards Civil Review Petition No.117/2006, we do not 
find that a case for review has been made out and it is accordingly 
dismissed. 
 
 
CHIEF JUSTICE 
 
 
 
 
JUDGE 
Announced in open Court 
on 14.2.2017 at Islamabad 
Approved For Reporting 
Waqas Naseer/* 
 
 
 
 
 
CHIEF JUSTICE 
 
