' Facts giving rise to this regular second appeal are that the appellant, Mst. Ayesha, filed a suit for possession of certain land through pre-emption. This land was purchased by respondent No.1 Shamas-ud-Din, from her father, namely, Suleman, by means of a oral sale which was followed by mutation No.190, attested on 20t February, 1969. In the mutation, sale price was given as Rs.7200.
Was, however, urged by the appellant that the sale had taken place in fact, for Rs.2880 and the sale price of Rs.7200 was fictitious mentioned in the mutation with a view to defeating pre-emptive right The said pre-emption suit was filed on 13th December, 1969. It w still pending when, on .7th- January, 1971, respondent No.2, Bash Ahmad, brought a suit against the said Suleman and respondent No. For specific, performance of an agreement to sell the said land. It w urged by respondent No.2 that on 18th November, 1968 the sa1 Suleman executed a deed agreeing to sell the land to him for Rs.30 and had also received the whole of the sale price. In the suit f specific performance, respondent No.l submitted written stateme confessing judgment. In view of his written statement, it was stat by Suleman, before the Civil Judge who was seized of the suit-'f specific performance, that if respondent No.l had no objection to t suit being decreed, he too would not raise any objection in t matter. On this, suit for specific performance was decreed on 7 March, 1972. Suit for specific performance was still pending who respondent No.2 made an application for being impleaded as a par to .The pre-emption suit brought by the appellant. The appellant a respondent No.l did not object to his application and there up respondent No.2 was made a party to the pre-emption suit. By t time respondent No.2 filed written statement in that suit, his slid for specific performance had been decreed. It was, therefore, plead by him that as his suit had been decreed, suit for pre-emption court not proceed. It was also maintained by him that Suleman had agree to sell the land to him before he had sold it to. Respondent No.l.
2. Before respondent No.2 became a party to the pre-emption suit, following issues were framed by the Civil Judge who was hearing the said , suit:-
(1) Whether the plaintiff has got superior right of pre-emption OPP.
(2) Whether a sum of Rs.7200 was fixed in good faith and act paid as the sale price of the suit land?
OPD.
(3) If not, what was the market value of the suit land at the the of sale? OP. Parties. .
(4) Relief.
' After filing of the written statement by respondent No.2, the following additional issue was struck by the learned Civil Judge:- ' 3-A. Whether vendor Suleman had made agreement to sell the 1a to defendant No.2 prior to the sanctioning of mutation No.190.
' If so, its effect?
3. The learned Civil Judge decided. Issue No.l in favour of the appellant but issue No.2 against her.
Issue No.3-A wit's also decided n her favour. In result, her suit was decreed on payment of Rs.7200.
Respondent No.2 went in appeal before an Additional District Judge, the reversed the binding of the learned Civil Judge on issue No.3-A. View taken by him was that possession of the disputed land had seen delivered to respondent* No.2 and he had also paid whole of the sale price in pursuance of the agreement to sell. Thus, according to he learned Additional District Judge, complete sale of land in favour of respondent No.2 had taken place and as such subsequent sale in favour of respondent No.l was totally ineffective. He, therefore, accepted the appeal and dismissed the suit of the appellant. Feeling aggrieved by his judgment and decree, she has come up in- second appeal to this Court.
4. It was contended by learned counsel for the appellant that he agreement to sell, relied upon by respondent No.2, was collusive md, therefore, of no legal effect qua the sale pre-empted by the appellant or the suit filed by her. In reply, it was submitted by earned counsel for respondent No.2 that the plea of collusion was lever raised by the appellant nor there was any evidence" thereon.
According to him, the agreement to sell had been proved by respondent *o.2 and the decree passed on the basis thereof had attained finality value to its having not been challenged by any one.
5. It is not denied that a consent decree was passed in the suit 'or specific performance brought by respondent No.2 on the basis of the agreement in question. In that suit the appellant's father, Suleman, was one of the defendants. In the pre-emption suit, Suleman was the only witness of the appellant to make statement regarding the said agreement. There he tried to help the appellant by making a ridiculous statement, namely, that he entered into the said agreement with respondent No.2, for the benefit of respondent Np. 1, and that the sale price of Rs.3000 was also paid by respondent No.
1. This was lever his position earlier nor there is any plea of the appellant in his regard. The appellant did not appear as her own witness to debut the evidence of respondent No.2 on issue relating to the agreement in question. Evidence of respondent No.2 in this behalf :onsists of his own statement and that of respondent No.l. Besides, here is consent decree passed in his favour in the suit for specific lerformance. It is noteworthy that the said decree was hot challenged by the appellant by means of an appeal or otherwise. When respondent No.2 made application for being impleaded as a party to her pre-emption suit, she agreed to his becoming a party thereto. While putting in amended plaint so as to make him a party to the suit, she did not lay a word against the agreement in dispute. Even after the passing if the decree in the suit for specific performance she did not attack he decree by amending her plaint or otherwise. Issue No.3-A was rammed by the learned trial Court in view of the averment of respondent No.2 and not in response to any initiative on the part of the appellant. Ror reasons already given, statement of Suleman, which is the only evidence of the appellant regarding the said agreement, does not inspire confidence. By agreeing the grant of decree in the suit for specific performance, he had also, in a way, admitted having entered into the agreement in question. In the circumstances, the learned Additional District Judge was justified in reversing finding of the learned trial Court on Issue No.3-A.
6. As for argument of learned counsel for the appellant that the agreement was Collusive, I agree with learned-counsel for the respondent No.2 that there is no plea of the appellant in this behalf.
There is also no evidence, of collusion. I am, therefore, unable to accept his plea of collusion.
7- . Learned counsel for the appellant did not question any findings of the learned Additional District Judge except the one on issue No.3-A which, for reasons already given, I would like to uphold.
8. In result, .1 find no force in this appeal and dismiss it, with costs.