' This second appeal arises out of the judgment of the learned District Judge, Jhelum, dated 10th September, 1978, whereby he reversed the judgment of the trial Court dated 11th December, 1977 and granted decree in favour of the plaintiff for possession of land by pre-emption on payment of Rs, 4,000.
2. The suit was brought by Adalat Hussain claiming superior right of pre-emption being a co-sharer in the Khata. He also alleged that the sum of Rs, 4,000 was not fixed in good faith and was not actually paid. The suit was resisted by the defendant and on the pleadings of the parties the following issues were framed :
(1) Whether the plaintiff has got superior pre-emption right to that of the defendant ? 0. P. D.
(2) Whether Rs, 4,000 were fixed in good faith or actually paid as price of suit land ? 0. P. D.
(3) If issue No, 2 is not proved, what is the market value of the suit land ? 0. P.
(4) Whether the plaintiff is estopped by his words and conduct to bring the present suit ? 0. P. D.
(5) Relief.
3. After recording evidence of the !Parties and hearing arguments the suit was dismissed on the basis of waiver of right of pre-emption. Before the learned lower appellate Court issue No, 4 relating to the question of estoppel by the words and conduct of the plaintiff was only pressed was found that despite the fact that the plaintiff had earlier entered into an agreement with the vendor to purchase the land, the transaction having remained incomplete, he cannot be said to have acquiesced to the sale in favour of the defendant-vendee.
4. Learned counsel for the appellant rightly argued that the plaintiff has not mentioned in the plaint the factum of previous transaction, he has neither filed a suit for recovery of Rs, 600 (the money advanced to the vendor) nor suit for specific performance of the contract, he had obviously acquiesced because despite the fact that a mutation was entered and rejected, the order was not challenged by way of appeal. The submission has ample force, for no such stand has been taken in the plaint. The defendant-appellant did raise this objection in the written statement. Learned District Judge has not correctly decided issue No,
4. Reliance is placed on Indraj v. Brother Clement
(1) AIR 1915 All.
51.
5. Learned counsel for the respondent referred to Natha Singh and others v. Sundar Singh and others (I) which is entirely a different case. The pre-emptor refused to buy where the vendor offered property to him at a price higher than that ultimately accepted by him from vendee. It was held that pre-emptor was not estopped from asserting his right by reason of his refusal to buy the property. Reliance was also placed on Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf (2), Abdul Wahid Khan v. The Custodian of Evacuee Property (3) and Qutub-ud-Din v.
Muhammad Siddique and others (4). Both the judgment of the Supreme Court and Quetta Bench of erstwhile West Pakistan High Court are not at all relevant. So far as Qutub-ud-Din v. Muhammad Siddique and others is concerned that would not help him either. From the conduct of the plaintiff it is abundantly clear that he has waived his right of pre-emption. The judgment of the lower appellate Court is set aside, that of the trial Court is restored and the suit is dismissed leaving the parties to bear their own costs.
(1) AIR 1926 Lah. 10
(2) PLD 1971 SC 376
(3) PLD 1962 Quetta 72
(4) PLD 1969 Lah. 418