' AKHTAR HASAN, J.--This Regular First Appeal is directed against the decree, dated 29-4-1984 of the learned Civil Judge 1st Class, Sargodha, whereby the respondent Dost Muhammad's rival suit for pre-emption was allowed while the confessional decree, dated 27-7-1982 passed in favour of the appellant Boota as son of the vendor was ruled out to be ineffective on the ground of being collusive.
2. The impugned sale was finalized through the decree, dated 13-7-1981 based upon an award. The respondent Dost Muhammad filed his suit on 12-7-1982 on the qualification of being a collateral of the vendor. On the other side, the appellant Boota too brought a suit to pre-empt the sale as the vendor's son and obtained the decree, dated 27-7-1982 on the vendee's confession. He was then rivally impleaded in the present suit though the plea taken was that not only his decree was bad being collusive but also his very suit stood dismissed because of his failure to deposit the pre- emption amount within the period of one month fixed in the decree.
3. The suit was resisted both by the vendee as also the appellant denying 'the collusive nature of the decree obtained by him. Instead they claimed that it had been passed in assertion of comparatively better right of the appellant as son of the vendor. Valuation of the suit for Court-fee and jurisdiction was assailed. Waiver too was pleaded against the respondent/rival pre-emptor.
The following issues were framed by the learned trial Court:-
(1) Whether the suit is incorrectly valued for the purposes of Court-fee and jurisdiction? If so, what is the correct valuation and with what effect? OPD.
(2) Whether the suit is barred by time? OPD.
(3) Whether the plaintiff is estopped by his act and conduct to bring the suit? OPD.
(4) Whether the plaintiff waived his right of pre-emption? OPD.
(5) Whether the plaintiff has superior right of pre-emption as against the defendant No,1? OPD.
(6) Whether decree got by defendant No,2 against defendant No,1, dated 27-7-1982 is illegal and ineffective against the right of the plaintiff for the reason stated in para 7 of the amended plaint?
OPP.
(7) In case the suit is decreed, whether the defendant No,1 is entitled to recover charges as claimed in preliminary objection No,5 of the written statement? OPD.
(8) Relief.
' After considering the evidence produced by the parties in support of their respective contentions the learned trial Court decided Issues Nos.1 to 4 and 7 against the appellant and Shera respondent No,2 and issues Nos. 5 and 6 in favour of Dost Muhammad respondent No,1. As a result of the above findings decree for possession through pre-emption of land measuring 79 Kanals 10 Marlas situated in village Devwa l, Tehsil Bhalwal, District Sargodha, was passed in favour of Dost Muhammad respondent on payment of Rs,70,000 as purchase money.
4. Although the appellant has assailed the findings of the learned trial Court under Issues Nos. 1, 2 and 6 in the Memo. Of Appeal the learned counsel for the appellant has confined his arguments to the finding under issue No,6 at the time of hearing of the appeal.
5. Learned counsel for the appellant has contended that the view taken by the learned trial Court that the decree passed in favour of the appellant had ceased to exist and that the appellant's suit should be dismissed for non-compliance with the condition regarding deposit of the purchase money is not correct. The appellant could not deposit the purchase money on 27-8-1982 on the expiry of the period fixed in the decree because the Court was closed on account of summer vacation. It was on re-opening of the Court that the amount was deposited on 7-9-1982 under the order of the Court. Learned counsel has in this connection referred to the statement of All Ijaz, Naib Nazir, Bhalwal, who was examined as P.W.1 by Dost Muhammad respondent. He deposed that the purchase money was deposited by the appellant on 7-9-1982 and that the same was paid to Shera respondent on 9-9-1982. According to the learned counsel it was the vendee, who alone could be benefited by the dismissal of the appellant's suit, but he did not raise any objection against the belated deposit of purchase money. On the other hand, as stated by P.W.1, he had received the pre-emption money from the Court on 9-9-1982 and thus by his conduct had waived the non-compliance of the condition regarding deposit of pre-emption money within one month from the date of passing of the decree. Learned counsel has further contended that the decree passed in favour of the appellant had been implemented by receipt of the pre emption money by Shera respondent and so it was no longer open to the learned trial Court to hold the aforesaid decree as illegal, void and collusive. Lastly, it has been argued by the learned counsel that acceptance of the purchase money by the Court after the expiry of period prescribed in the decree could not be questioned on the ground that the Court had acted without jurisdiction because the above action of the Court was not challenged either in appeal or in revision by any aggrieved party.
6. We have carefully considered the arguments of the learned counsel for the appellant. We find ourselves unable to agree with the propositio that non-compliance with the condition regarding deposit of purchas money within one month from the date of decree had not resulted I A the dismissal of the appellant's suit. The appellant has failed to place copy of any order passed by the Court whereby he was permitted t deposit the purchase money after the expiry of the prescribed period. The mere fact that the appellant had deposited the purchase money on 7-9-1982 and entry to that effect had been made in the relevant register of the Court does not lead to the conclusion that the deposit was made under order of the Court. The statement of Ali Ijaz P.W.1 that the amount deposited on 7-9-1982 also included the amount of Zar-e-Panjum, which normally should have been deposited by the appellant before the decision of the suit, also makes it highly doubtful that the Court had passed any order permitting the appellant to deposit Zar-e-Panjum and the purchase money after the time specified in the decree had expired. The above statement also indicates the collusive nature of the litigation in which the decree relied upon by the appellant was passed. It is not possible to accept the contention of the learned counsel for the appellant that by the acceptance of purchase money after the period specified in the decree had expired Shera respondent had waived the condition and had thus saved the appellant's suit from being dismissed in terms of the decree because the condition was imposed by the Court and the consequences which were to follow on account of its non-compliance, could not be stopped by the conduct of the parties. There is also n force in the contention of the learned counsel for the appellant that the deposit of purchase money by the appellant after the expiry of the period specified in the decree could be questioned only in appeal or in revision because one of the issues which required determination in the suit, out of which this appeal has arisen, was whether the decre passed in favour of the appellant was legal and enforcible so as to defeat the rival pre- emptor's suit and so it was for the trial Court to examine and give its finding whether the deposit of purchase money by the appellant after the expiry of the period fixed by the Court grantin the decree was proper.
7. Learned counsel for the appellant has contended in the alternative that even if the deCree or for that matter the appellant's suit failed, the transaction made in his favour may be treated as sale and being within the period of six years as held by the trial Court to be applicable, he could defeat the respondent's suit on the strength of his being a son of the vendor. We regret we are unable to subscribe to this view, for, it had not been specifically taken up in the pleadings where the appellant as also the vendee in a complementary method supported each other jn maintaining that only a decree in pursuance of the suit for pre-emption of the appellant had been passed in his favour. They did not aver if they had entered into a sale in its simpler form without the need of the decree confessed in favour of the appellant. If, therefore, the decree fails, they cannot be permitted to take up any other positio especially when it is dependent upon determination of certain facts' e.g. Payment of consideration amount etc. Etc. The respondent canno be taken by surprise and, therefore, the appellant had to sail or sin on the strength of the decree which he obtained with considerab contrivance. Failure to deposit the amount also partakes the failure to the payment of consideration even for the alleged sale and on this ground too, the appellant's plea has no force.
The Regular First Appeal is dismissed leaving the parties to bear their own costs.