Ch. Amjad Khan, J.- Suit for possession through pre-emption filed by the respondent Allah Bakhsh on 8.6.1980 with regard to 85 Kanals 10 Marlas of agricultural land situated in village Mohanpur Gharbi, Tehsil Shujabad on the ground of being a co-sharer in the suit-land was contested by the appellants by refuting his claim and also raising a number of other objections which led to the framing of ten issues in all. On the basis of evidence led by the parties trial Court held the plaintiff to be having superior right of preemption but came to the conclusion that he had waived his right in consequence whereof he was held estopped from maintaining the suit which was consequently dismissed on 10.2.1985.
2. An appeal thereagainst filed by the plaintiff in the District Court was entrusted to a learned Additional District Judge before whom the trial Court's finding only under issue N0.8-A relating to estoppel was contested. He reconsidered the evidence and came to the conclusion that the vendee- defendants had not been able to prove that the plaintiff was present at the the either of bargain or sale. He also held that the plaintiff had not been offered to be sold the land which may have been declined by him. In consequence, he set aside the trial Court's decree upon reversing its verdict under issue N0.8-A and accepted the appeal into decreeing the plaintiff- respondent's suit by his judgment dated 11.2.1988. The vendees have now come up to this Court on revision.
3. It was sought to be contended that since the suit of the plaintiff had not been decreed at any stage before 31.7.1986, the date fixed in the case of Said Kamal Shah reported as P.L.D.1986 S.C.360, therefore, by virtue of the rule laid down in Sardar Ali and others v. Muhammad Ali and others (1988 PSC. 1260) his suit could not have been decreed now. This contention seems to have stemmed from a singular miscomprehension of the judgment delivered in Sardar Ali's case (Ibid) which has dealt with the impact of Said Kamal Shah's case on the various stages of pendency of the litigations arising out of the suits filed on the basis of such rights of pre-emption recognized under the Pre-emption Acts as had been held by the Shariat Appellate Bench of the Supreme Court to be against the injunctions of Islam and it does not apply to the right of a co-sharer which has survived the scrutiny made therein. Since the present suit is based on such a saved right, therefore, there is no impediment in its having been decreed for the first the in appeal subsequent to the specified date 31.7.1986, only on the 11th of February, 1988.
4. Upon realizing that the attempted argument will not take him far enough on account of the above set-out analysis, the Advocate for the vendee-appellants came out with a new assertion that since the pre-emption suit of the respondent was not preceded by 'Talab' and notice, the prerequisites for the exercise of right under the Muslim Law, therefore, a decree therein could not be passed in his favour after the 31st of July, 1986 and learned Additional District Judge has acted illegally in decreeing the suit for the first the on 11.2.1988. This contention is sought to be fortified on the basis of an unreported judgment dated 24.5.1988 passed by the Supreme Court in Civil Petition No.233 of 1988, titled Barkat Ali v. Khan Muhammad & 2 others and to unreported orders passed on its basis by my learned brother Khalil-ur-Rehman, J, on 5.6.1988 and 7.6.1988 to respectively dismiss in limine FA.O.No 18 of 1988 and Civil Revision No.562/D of 1987 which had been maintained by the respective plaintiffs with the prayers that their suits may be decreed on the basis of reights as co- sharers. In all three cases the unsuccessful pre-emptor were denied the relief for the reasons that their suits had been dismissed all along upto 31.7.1986 and their plaints did not contain any assertion with regard to the fulfilment of the said pre-requisites of 'Talabs'. I respectfully bow before the view expressed in the first- mentioned case and may not be taken to be cavilling thereabout in observing that the said judgment deals with a different situation and proceeds on its own facts and circumstances of the Case and does not get attracted to the above set-out facts of this suit so that the said judgment may not be regarded as having equipped even a defeated vendee with a weapon for being relieved of the decree passed against him under the provisions of the Punjab Preemption Act, 1913 on such a ground which ultimately survived the scrutiny and was excepted from the declaration made by the Shariat Appellate Bench of the Supreme Court in Said Kamal Shah's case reported as P.L.D.1986 S.C.360. In my humble view, the aforementioned contention cannot prevail in the case in hand.
5. Moreover, the afore-noted plea relates to a question of pure fact and such an objection was not raised in the written-statement and the suit of the respondent was not contested on such a ground. So much so that there has not been taken any precise objection or. That score even in the memo of this appeal. Thus, it happens to be a new plea of fact not raised earlier and is hence not open to be entertained for the first the at this late stage.
6. There is yet another angle of approach to the matter, namely, that one of the fundamental rules of administration of justice between the parties to a lis is that there may be only one standard applicable to both sides so that they may be given equal treatment. It would follow therefrom that if a plaintiff has to fail due to his omission to make a certain vital assertion in his plaint then there would not be any discoverable reason as to why a vendee- defendant may not have to suffer on account of his failure to take a timely objection with regard to such an omission on the part of the plaintiff and more particularly so when the insistence upon the fulfilment of such a precondition may be capable of being waived by a vendee who has the undeniable right to surrender his interest in a property unconditionally, out of the Court even to his adversary.
7. Furthermore, the vendee-defendants in this case stand precluded from raising the objection now on account of the rule of pari-delictio inasmuch as they had allowed the decree to be passed against them without demur in the appeal below and have failed to take this particular objection as a ground of attack in the memo of this appeal filed by them against such a decree. There is no reason to permit the defendants to now wake-up to the situation to be able to raise the objection.
8. For all the reasons set-out above, the afore-noted contention cannot be sustained and the same is accordingly repelled.
9. As a last resort, justification for this second appeal has been sought to be made by assailing the finding adverse to the vendees reached in the appeal below with regard to the defence of estoppel raised by them but neither any misreading or non-reading of some material evidence has been shown nor has a disregard of some established principle of appreciation of evidence been pointed out. Since the plea of estoppel has to be rested or. Certain facts and the court of first appeal, which is a final court with regard to questions of fact, has duly reached a finding against the vendees, therefore, that finding cannot be re-opened for consideration in a second appeal and inthe presence of that finding there cannot be any occasion to attract the rule of estoppel. The contention fails, hence.
10. There is no other point raised for adjudication.
11. Result of the foregoing is that there is no force in this second appeal which is accordingly dismissed in limine.