AMJAD KHAN, J.- The respondent filed a suit on 31.7.1979 to pre-empt b sale of agricultural land on the ground of his being an owner of the estate and also a co-sharer of the land in suit. The vendee defendant re-iterated the sale to have in fact been made for Rs.1,62,500/- and contested the'suit by denying his claim and also raised the pleas of limitation and estoppel in addition to objecting to the valuation of the suit.
2. Before framing the issues on 26.1.1980,, trial Court examined the Parties under Rule 4 of Order XIV of the C.P.C. Wherein the plaintiff deposed to his being an owner of the estate and also a sharer of the Khata of the suit-land. On the other side, Rangeen Khan, general-attorney of the vendee- defendant appeared and made a statement clearly admitting both the grounds urged by the plaintiff to claim superior right of pre-emption, admitting also that the defendant is not a co-sharer in the village. The suit was, hence, set down to be tried on only the following issues framed on 27.1.1980:- "1. Whether the suit is the barred on the ground that proper Court- fee was not paid within the?OPD.
2. Whether the suit has been wrongly valued for the purposes of Court-fee and jurisdiction? If so what is the correct valuation? OPD/parties.
3. Whether the plaintiff is estopped by his conduct to bring the present suit?OPD.
4. Whether the ostensible sale amount of Rs.l,62,500/-was fixed in good faith or actually paid?OPD.
5. If issue No.4 is not proved, what was the market value of the suit land at the the of sale?OPTS.
6. Relief."
3. Parties led their evidence, upon the consideration whereof trial Court decided all the issues excepting that of estoppel, in favour of the plaintiff and it held under issue No.3 that the plaintiff was estopped to sue on account of his conduct for his having got the bargain struck with the vendee. In consequence, by the judgment dated 1.11.1986, suit of the plaintiff was dismissed.
4. An appeal thereagainst filed by the plaintiff came up for hearing before an Additional District Judge who reconsidered the evidence into reversing the trial Court's finding under issue No.3 for the reason that there were glaring contradictions in the evidence of the witnesses examined in support of the plea of estoppel and the same is not reliable. In result, he set asied the trial Court's decree upon accepting the appeal and decreed the suit in favour of the plaintiff by his judgment dated 31.3.1987.
5. The vendee has now come up to this Court on revision and his counsel secured admission of this petition to regular hearing on the representation that there was no issue framed with regard to the superior right of pre-emption despite its specific denial in the written statement. It is regrettable that in making this representation, the counsel had not merely suppressed the admission made on 26.1.1980 by the general-attorney of the vendee before the trial Court conceding the status of the plaintiff but had also mis-stated that the superior right of pre-emption was a point of contest between the parties. It actually was not so and this is the reason why there was no issue on the point framed by the trial Court. This point did not any more remain contentious between the parties.
6. Perhaps, the counsel is consciours of the weakness of his stand and has only yesterday put in C.M.No.l517/C of 1988 for leave to amend the memo of appeal filed as far back as 12.4.1987. This petition is also fixed for today and I have heard it. By amendment, it is desired to be urged that the plaintiff did not approach the appellant-vendee for transfer of the land to him on the basis of his preferential right of pre-emption which he had not asserted even in the shape of 'Talabs'before the institution of the suit. Since this is a plea relating to a fact and was not raised in either of the to Courts below, therefore, it cannot be allowed to be raised at this third stage of the litigation in the R.SA. More particularly so because the point of superior right of pre-emption stood conceded in the trial Court more than eight years before and the rule of pari-delictio also stands in the way of the vendee raising this plea now because he has suffered the decree to be passed against him without demur. The petition is, hence, rejected.
7. Last argument attempted to be made by the appellant's Advocate is that the plea of estoppel has been wrongly decided in the appeal below. There cannot be any substance in such a plea because a Court of first appeal is the final Court on questions of fact and so long as its finding thereabout is based on the record and has not resulted from disregard of any rule of law relating to appreciation of evidence, its conclusions on questions of fact cannot come up for reconsideration in a Second Appeal wherein the High Court does not have the power to interfere even for the reason that if it were to itself consider the matter as a Court of first appeal it would have reached a different conclusion. Even if a conclusion to the contrary may also be possible to be reached on the basis of the same evidence, interference in questions of fact decided below would not become justified. It is indisputable that estoppel is basically a question of pure fact. Scope for interference in such questions of fact in second appeals stands sussinctly laid down in Abdul Maiid and others v.
Khalil Ahmad (P.L.D.1955 Federal Court 38) and Pathana v. Mst.Wasai and another (P.L.D. 1965 S.C.134). The finding reached in the appeal below under issue No.3 is unexceptionable and there does not exist any case for interference therewith.
8. No other point has been argued before me.
9. Result of the foregoing is that there is no force in this second appeal. The same is accordingly dismissed with costs.