This R.F.A. Arise from the decree, dated 6-5-1980 of the learned Civil Judge 1st Class, Sheikhupura, whereby the appellant's suit for pre-emption was dismissed.
2. The sale in question was sought to be pre-empted on the grounds that the appellant was (1) a co-sharer in the Khata with the vendors, and (2) their real sister. The ostensible price of Rs.70,000 was assailed maintaining that, in fact, only a sum of Rs.30,000 was paid.
3. The suit was contested by the respondents vendees urging that the appellant's attorney Qurban Ali had no authority to institute it as on her behalf; that she had waived her right of pre-emption inasmuch as she had mortgaged her own share in this very Khata in their favour that very day to raise money to pre-empt other sales; that they had effected improvements worth Rs.40,000 and that it was barred by time as also partial pre-emption.
4. Appropriate issues were framed by the trial Court. Issue No. 2 relating to estoppel was found against the appellant. Additionally it was also held that the suit was to fall on the ground that the court-fee had not been paid in time and further that the plaint having not been signed by the appellant herself, attorney Qurban Ali was incompetent to file it. Other issues were as well determined but they are not much relevant for the present purposes.
5. Learned counsel for the appellant seriously assailed the finding in regard to the absence of authority in favour of the attorney Qurban Ali in filing the suit on her behalf on the ground that there was no issue framed. A perusal of the written statement would show that the respondents had definitely taken it up Ordinarily the trial Court should have framed a formal issue but it appears that the parties being alive to it had led evidence for and against. The appellant failed to produce the original thereof. Only a photostat was tendered which by no means was admissible. Its perusal did not contain an authorization in favour of the attorney to institute suits like pre-emption in regard to sales to be taking place in future. Conversely all that it authorized him to do was to deal with the donors' property already acquired by her or the litigation which may be either pending or be brought in future in relation thereto. Obviously this authority did not cover bringing suits in relation to the sales of property belonging to other persons. Failure to frame the issue lost its efficacy as at least the appellant led evidence on the point.
6. The finding on the point of estoppel was equally unassailable The evidence shown that on the very day when the impugned sale was transacted, the appellant mortgaged her own share in this very Khata in favour of these very vendees to raise funds to prosecute some other suits for pre- emption which were later decreed by means of Exh. P. 7 and P.
8. The sale deed (Exh. D. 1) as also the mortgage deed (Exh. D. 2) were attested by the same witnesses were presented before the Sub-Registrar at the same time and besides all else were both executed in favour of these very vendees. Being a real sister of the vendors, there was reason to suppose that they were all working together in making these two transactions in favour of the respondents. While the D.Ws. Affirmed as to her having consented to the impugned sale, the --appellant did not appear in the witness box to deny it on oath, nor was any reason shown about this omission. Lately it has been ruled in Naseer Ahmed v. Arshad Ahmed PLD 1984 SC 403 that in case of close relation like sisters and brothers, a presumption would arise that the suit is male fide.
7. Accordingly there is no substance in the appeal and the same is dismissed leaving the parties to bear their own costs.