' MAULVI ANWARUL HAQ, J.---Vide Mutation No,47 attested on 24-6-1968 Muhammad Shah, predecessor-in-interest of respondents No,1 to 8. Purchased the suit-land, described in the plaint, for a consideration of Rs,8,000. On 16-1-1999, the appellant filed a suit for possession by pre- emption. He claimed to be a son of the vendor namely Mazhar Hussain Shah. I may note here that at the above said time, the appellant was a minor and had filed the suit through one Fida Hussain Shah as next friend, who was stated to be his maternal uncle. It may also be noted here that the said vendee died during the pendency of the suit and his legal heirs were impleaded. One of his legal heirs namely Bashir Hussain Shah (present respondent No,4) sold his share to Karamat Hussain Shah, respondent No,9 which sale was subject to pre-emption by Nazir Hussain Shah (present respondent No,3) as also Abdul Khalique (present respondent No,10). Respondents Nos.9 and 10 were accordingly impleaded. Muhammad Shah, deceased vendee, filed his written statement on 10-5-1969. He objected that although a mutation of sale was attested but, in fact, the transaction came into effect as a result of compromise of along standing disputes in a Court of law. It was further objected that the suit is mala fide and has been filed for the benefit of Mazhar Hussain Shah, father of the appellant. It was then stated that out of the suit-land, land measuring 8 Kanals and 2 Marlas was owned by the said deceased defendant and he was occupying the same since the year 1940 under a compromise. It was then stated that the minor plaintiff was estopped by the conduct of his father, who issued notice under section 19 of the Punjab Pre-emption Act, 1913.
The fact that the appellant is the son of the vendor was not denied. No dispute as to the consideration was raised.
' Another written statement available on record was filed by Kramat Hussain, respondent No,10 on 16-4-1980. He claimed to be a bona fide purchaser for a consideration of Rs,44,500. Other contents were denied, rather ignorance was pleaded.
2. Evidence of the parties was recorded. The learned trial Court decreed the suit subject to deposit of Rs,8,000 vide judgment and decree dated 28-2-1982. First appeal was filed only by the legal heirs of the deceased vendee i.e, present respondents Nos.1 to 8. This appeal was heard by a learned Additional District Judge, Rawalpindi, who allowed the same on 30-7-1985 and dismissed the suit by reversing the findings of the learned trial Court on the following issues Nos.2, 3 and 5:--
(2) Whether the plaintiffs participated in the alleged compromise? If so its effect?
(3) Whether the suit has been brought for the benefit and at the instance of plaintiffs father?
(4) Whether the suit is the result of "sic" If so, its effect?
3. The present regular second appeal was dismissed by this Court on 14-11-2000. The appellant filed Civil Appeal No,1970 of 2001, which was allowed by the Honourable Supreme Court of Pakistan, vide judgment dated 9-1-2008 and the case was remanded back to this Court for a fresh decision of this regular second appeal.
4. Learned counsel for the appellant contends that the learned Additional District Judge has failed to read the pleadings and consequently has proceeded to decide the case with reference to the evidence regarding a plea, which was never taken. Further contention is that there is no evidence on record, which can support the findings of the learned Additional District Judge that the appellant in any manner was estopped from filing the suit or could have been said to waive his right of pre-emption. He relies on Sh. Fateh Muhammad v. Muhammad Adil and others (PLD 2007 Supreme Court 46). Learned counsel for the respondents/vendees, on the other hand supports the impugned judgment and decree of the learned Additional District Judge. According to him, sufficient pleadings and evidence is there to support the findings recorded by the learned Additional District Judge in the impugned judgment.
5. I have gone through the records of the learned trial Court with the assistance of the learned counsel for the parties. I have reproduced above the material contents of the plaint as also of the written statement filed by the deceased-vendee. There is no denial of the fact that the appellant is the son of the vendor. The pleas taken by the said deceased-vendee are duly reflected in the above rioted Issues Nos.2, 3 and 5. The onus of all the three issues was upon the contesting respondents. To prove the said issues. Bashir Hussain Shah, respondent No,4, entered in the witness-box as DW-1. He has stated that the sale took place as a result of compromised decree and Fida Hussain Shah was a party to the same. The appellant is residing at a distance of 35/40 miles from the suit-land and has filed the suit for the benefit of Muhammad Afsar, who resides in the same village where the land is located. This is the entire examination-in-chief of the said witness. Without reference to the cross-examination, it can safely be stated that the said statement is wholly inconsistent with the pleas taken in the written statement i.e, the suit has been filed for the benefit of Mazhar 'Hussain Shah vendor or that the appellant is estopped from filing the suit because of a notice issued by his father under section 19 of the Punjab Pre-emption Act, 1913.
6. Be that as it may, in the cross-examination, he admitted that Mazhar Hussain Shah has sold the land for Rs,8,000 and the appellant is the son of the vendor. He admitted that the appellant has filed the suit but volunteered that the suit had been filed on the asking of Mazhar Hussain Shah.
7. Before proceeding further, I may state that during the pendency of the suit, the appellant had attained majority and had opted to continue the suit himself. After consulting the next friend, he was allowed to do so. His attorney Asghar Hussain Shah appeared as P.W.1 to state that the suit has been filed by the appellant for his own benefit. This witness was cross-examined and not a single question was put to him to challenge the said statement.
8. To my mind, it is a case of no evidence in support of the said issues, which were answered by the learned Additional District Judge in favour of the respondents. However, I have also examined the other evidence on record, Exh.P.2 is the copy of notice filed by Mazhar Hussain Shah in the Court of learned Civil Judge. Rawalpindi, on 23-9-1965. It was ordered Muhammad Shah, deceased defendant, was ready to purchase the land for Rs,7,000 and Mazhar Hussain Shah was directed to sell the land to him within three months. However, if he is not prepared to purchase, the vendor would be entitled to sell his land to somebody else. Exh.D.2 is a copy of an application dated 20-12- 1965 filed by Mazhar Hussain Shah stating that he does not intend to sell the land as he wanted to purchase another land, which land has already been sold away. It appears that Muhammad Shah deceased-defendant filed a suit to specific performance on the basis of the said agreement recorded by the Court, which suit was decreed and on the basis of thereof the said Mutation No,47 was attested on 24-6-1968.
9. Now section 19 of the Punjab Preemption Act, 1913 provides that any person proposing to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property or urban immovable property, in respect of which any persons have a right of pre-emption, he may give notice to all such persons of the price at which he is willing to sell such property. Such a notice shall be given through a Court having the jurisdiction in the area where the land or property is located. Section 20 of the said Act provides that the right of pre-emption of a person upon whom a notice under section 19 is duly served shall be extinguished unless such person shall, within the period of three months from the date of said service or a further period not exceeding one year from such date, as the Court may allow, files a notice in Court for service on the vendor of his intention to enforce his right of pre-emption.
10. A bare reading of the notice Exh.P-2 shows that the appellant was not impleaded as a party thereto and it is neither a plea of the respondents nor there is any evidence that a notice in terms of section 19 of the Punjab Pre-emption Act, 1913, was duly given to the appellant. Nothing, therefore, turns on the said documents Exh.P.2 or Exh.D.2.
11. So far as the said compromise Exh. D.1 is concerned, it is dated 3-10-1940. The suit was filed in the year 1969 and it is everybody's case that the appellant was a minor at that time. A compromise, which took place long before the birth of the appellant, can hardly be referred to or relied upon to hold that he is estopped from filing the suit.
12. Having thus examined the pleadings of the parties and evidence on record. I find no evidence to support the findings that the appellant had, in any manner, waived his right of pre-emption of that he was estopped from filing the suit. The impugned judgment being based on no evidence is bad in law and is liable to be interfered with in this second appeal. Regular second appeal is accordingly allowed and the impugned judgment and decree dated 30-7-1985 of the learned Additional District Judge. Rawalpindi, is set aside and the one passed by the learned trial Court on 28-2-1982 decreeing the suit of the appellant is restored. In case, the appellant, has not already deposited the amount of Rs,8,000 as directed by the learned trial Court, he shall deposit the balance amount alter deducting 15th, if any, with the trial Court on or before 20-6-2008. In case, he fails, to do so, his suit shall stand dismissed with costs throughout. At the moment, the parties are left to bear their own costs. The records be remitted back immediately.