' The appellant filed a suit for the possession of suit land by way of the exercise of right of pre- emption on 10th April, 1965. The land bad been sold by Akbar Hussain Shah by Mutation No, 197 dated 11-4-1964 in favour of the original respondents Nos. 1 to 5 for a total consideration of Rs, 7,700.
The appellant urged that the land had actually been sold for Rs, 5,000 and the price had been inflated to Rs, 7,700 in order to defeat his superior right of pre-emption. The plaintiff claimed his superior right inter alia on the ground that he was an owner in the estate. The suit was contested and the vendees/original respondents Nos. 1 to 5 claimed that the amount of Rs, 7,700 had actually been paid and that the same was also the market value. It was further contended that the sale was not pre-emptible by the plaintiff on account of his conduct. On the pleadings of the parties the following issues were framed :-
(i) Whether the plaintiff has got preferential right to the suit land ? 0.P. P.
(ii) Whether the amount of Rs, 7,700 was actually fixed and paid to the vendor ? 0. P. D.
(iii) What is the market value of the suit land ?
(iv) Whether the plaintiff is estopped from filing the present suit by his conduct ? 0. P. D.
(v) Whether land is not pre-emptible ? 0. P. D.
(vi) Relief.
2. Issue No. 1 was decided in favour of the appellant. On Issues Nos. 2 and 3 the learned Civil Judge fixed the price of the suit land at Rs, 2,825. Issue No, 4 was decided in favour of the appellant. Issue No, 5 was decided in the negative. The suit was decreed by the learned trial Court vide its judgment and decree dated 15th May, 1967. The original respondents Nos. 1 to 5 filed an appeal against the said judgment and decree. Before the Appellate Court the plaintiff made a statement that he was prepared to make payment of Rs, 7,700 and as such there was no controversy left on this score. The learned Additional District Judge, also noted that Issue No, 4 had not been pressed. The learned Appellate Court affirmed the findings on all other issues and only dealt with the objection relating to the jurisdiction of the civil Court in view of the judgment of this Conti reported as Babu Ali Muhammad v. Mahmoodul Hassan (1) and the judgment and decree of the learned trial Court was reversed on 1-4-1968. As regards the question whether the civil Courts had the jurisdiction to try the suit, the learned counsel for the respondents conceded that the matter stands concluded by the judgment of the Supreme Court in Bashir Ahmad Khan v. Qaisar Ali Khan and others (2). The findings on the question of the jurisdiction of the civil Courts are hereby reversed.
3. The learned counsel for the appellant has argued that all other issues having been settled there was no need to remand the case. The manner in {{FOOT NOTE}}
(1) PLD 1968 Lah. 329 (2) PLD 1973 SC 507 {{FOOT NOTE}} ' which the issues have been dealt with by the appellate Court may be reproduced below :- "I have heard the counsel for the parties and have also 'gone through the record of the lower Court.
The findings on Issue No. 1 was not contested. On Issues Nos. 2 and 3 the learned counsel for respondent No. 1 the plaintiff conceded that the plaintiff Dur Muhammad Shah was prepared to pay Rs, 7,700 as price of the land. Issue No, 4 was not pressed. On Issue No, 5 the counsel for the appellant conceded that the land was pre-eatable."
4. As all the issues had been settled by the learned Additional District Judge in favour of the plaintiff and there being no bar in respect of the jurisdiction of the civil Courts, I accept this appeal, set aside the judgment and decree of the learned Additional District Judge, Multan dated 1-4-1968 and restore the judgment and decree of the learned trial Court dated 16-5-1967 with the exception that the plaintiffs instead of Rs, 5,825 shall pay the price of Rs, 7,700 and this amount shall be deposited within one month subject to the adjustment of any amount already deposited failing which the suit filed by the appellant shall be deemed to be dismissed.
5. However, the parties are left to bear their own costs.