1. NASIM HASAN SHAH, J.-The petitioner herein was a respondent along with four others in an appeal filed by respondents Nos. I to 4 herein against the dismissal of their suit for pre-emption of a sale made in favour of the petitioner and his co-respondents before the High Court of an area measuring :41 kanals and 11 marlas for a sum of Rs. 1,31, 000.
2. During the appeal proceedings, Nazeer Ahmad son of the petitioner (who was respondent No. 2 before the High Court) and Sher Muhammad (also one of the respondents before the High Court) were present. Murid Hussain and Maul Darya, appellants Nos. 1 and 3 before the High Court and respondents Nos. I and 3 before us, were also present. They were also represented by their counsel.
3. Here it may be mentioned that Ch. Khurshid Ahmad who was the Advocate of the petitioner herein and a respondent before the High Court along with the other respondents in the said Court had by then been elevated to the Bench of the High Court. Accordingly Nazeer Ahmad, above-mentioned, had executed a power of attorney in favour of Khawaja Muhammad Farooq. The power was given on his own behalf and also on behalf of other respondents. However, it is submitted before us that Nazeer Ahmad had neither any special nor any general power of attorney on behalf of other respondents and, therefore, was e-of authorised to engage Kh. Farooq Ahmad on their behalf. Be that as it may, it was agreed by the parties present before the High Court through statements made before it which statements were also supported by their learned counsel, to the effect that a compromise ad been entered into between the parties according to which on payment of Rs.
4. 51,000 including "Zar-e-Panjum" by the; pre-emptors (the respondents herein), they would be transferred 48 kanals in compact blocks out of 141 kanals 11 marlas, which was subject-matter of the sale. The decree of the trial Court was accordingly modified in tears of the above compromise, By this petition for leave to appeal the petitioner has challenged the aforesaid judgment and decree of the High Court before us.
5. Malik Allah Wasaya, learned counsel for the petitioner, has raised two contentions before us. Firstly that the petitioner had neither himself made any statement before the Court nor had he retained Kh. Muhammad Farooq to be his Advocate before the High Court and though Nazeer Ahmad was his son he was only a pro forma defendant and was also not authorised to either make a statement on his behalf or to engage a counsel on his behalf. Secondly, in so far as only 48 kanals out of 141 kanals and 1 I marlas have been transferred to-the respondent, they have lost their claim of pre-emption to whole of the suit land and the impugned judgment and decree is bit by the principle of partial preemption.
6. So far as first contention is concerned we observe that the petitioner's own son had made the statement accepting the compromise along with another co-respondent and that this was supported by the counsel representingthe vendee before the High Court. A similar statement was made by some of the pre-emptors which was also supported by their counsel. In A these circumstances, the Court was satisfied that the dispute had been settled by a lawful agreement which therefore passed a decree in accordance withthe terms of the compromise. In any case, this is a petition seeking leave t' 'appeal and not an appeal as of right. In the circumstances we are not inclined to grant leave in such a case.
7. As far as the second contention is concerned it has been made clear that the area being transferred to the pre-emptors was to be in compact blocks. The question whether in the circumstances this would come within the mischief of. The principle of partial pre-emption is a question of fact which cannot be investigated for the first time before this. Court. Hence this plea must also fail.
8. The result is that this petition fails and is hereby dismissed.