' 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 an oral sale which was followed by mutation No,753, attested on 6th February, 1969. In the mutation, sale price was given as Rs,9,500. It was, however, urged by the appellant that the sale had taken place, in fact, for Rs,3,300 and the sale price of Rs,9,500 was fictitiously mentioned in the mutation with a view to defeating preemptive rights. The said pre-emption suit was filed on 15th December, 1969. It was ,still pending when, on 7th January, 1971, respondent No,2, Bashir Ahmad, brought a suit against the said Suleman and respondent No,1 for specific performance of an agreement to sell the said land. It was urged by respondent No,2 that on 18th November, 196s the said Suleman executed a deed agreeing to sell the land to him for Rs,3,000 and had also received the whole of the sale price. In the suit for specific performance, respondent No,1 submitted written statement confessing judgment. In view of his written statement, it was stated by Suleman, before the Civil Judge who was seized of the suit for specific performance, that if respondent No,1 had no objection to the suit being decreed, he too would not raise any objection in the matter. On this, suit for specific performance was decreed on 7th March, 1972. Suit for specific performance was still pending when respondent No,2 made an application for being impleaded as a party to the pre-emption suit brought by the appellant. The appellant and respondent No,1 did not object to his application and thereupon respondent No,2 was made a party to the pre-emption suit. By the time respondent No,2 filed written statement in that suit, his suit for specific performance had been decreed. It was, therefore, pleaded by him that as his, suit had been decreed, suit for pre-emption could not proceed. It was also maintained by him that Suleman had agreed to sell the land to him before he had sold it to respondent No,1.
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,9,500 was fixed in good faith and actually paid as the sale price of the suit land? OPD.
(3) If not, what was the market value of the suit land at the time 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 land to defendant No,2 prior to the sanctioning of mutation No,753. If so, its effect?
3. The learned Civil Judge decided issue No,1 in favour of the appellant but issue No,2 against her.
Issue No,3-A was also decided in her favour. In result, her suit was decreed on payment of Rs,9,500.
Respondent No,2 went in appeal, which was accepted by an Additional District Judge. He reversed the finding of the learned Civil Judge on issue No,3-A, View taken by him was that possession of the disputed land had been 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 the 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,1 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 {{PAGE CUT}} ' the agreement to sell, relied upon by respondent No,2, was collusiv and, therefore, of no legal effect qua the sale pre-empted by th appellant or the suit filed by her. In reply, it was submitted b learned counsel for respondent No,2 that the plea of collusion wa never raised by the appellant nor there was any evidence thereon According to him, the agreement to sell had been proved by responder No,2 and the decree passed on the basis thereof had attained finalit due to its having not been challenged by any one.
5. It is not denied that a consent decree was passed in the su for specific performance brought by respondent No,2 on the basis the agreement in question. In that suit the appellant's father, Sulemar was one of the defendants. In the pre-emption suit, Suleman was th only witness of the appellant to make statement regarding the sai agreement. There he tried to help the appellant by making a ridiculou statement, namely, that he entered into the said agreement wit respondent No,2, for the benefit of respondent No,1, and that th sale price of Rs,3,000 was also paid by respondent No,1. This never his position earlier nor there is any plea of the appellant I this regard. The appellant did not appear as her own witness I rebut the evidence of respondent No,2 on issue relating to th agreement in question. Evidence of respondent No,2 in this beha consists of his own statement and that of respondent No,1. Besides there is consent decree passed in his favour in the suit for specif] performance. It is noteworthy that the said decree was not challenge by the appellant by means of an appeal or otherwise. When responder No,2 made application for being impleaded as a party to her pre-emptio suit, she agreed to his becoming a party thereto. While putting I amended plaint so as to make him a party to her suit, she did II( say a word against the agreement in dispute. Even after the passin of the decree in the suit for specific performance she did not attac the decree by amending her plaint or otherwise. Issue No,3-A wa framed by the learned trial Court in view of the averment of responder No,2 and not in response to any initiative on the part of the, appellant For reasons already given, statement of Suleman, which is the onl evidence of they appellant regarding the said agreement, does nc inspire confidence. By agreeing to the grant of decree in the su: for specific performance, he had also, in a way, admitted havin entered into the agreement in question. In the circumstances, th learned Additional District Judge' was justified in reversing findin of the learned trial Court on issue No,3-A.
6. As for argument of learned counsel for the appellant that th agreement was collusive, I agree with learned. Counsel for th 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 t accept his plea of collusion
7. Learned counsel for the appellant did not question any finding of the learned Additional District Judge except the one on issu No,3-A which, for reasons already given, I would like to uphold.
8. In result, I find no force in this appeal and dismiss it with costs.