MALIK MUHAMMAD QAYYUM, J.-This appeal arising out of a suit for possession through pre-emption relates to land measuring 110 Kanals 17 Marlas situate in Thatti Bhattian, Tehsil Ferozewala District Sheikhupra. It was sold by its owner Mst. Gaman the real sister of Ghulam Muhammad respondent to the appellants Faqir Muhammad and others through a registered deed of sale dated 15th of May, 1972 ostensibly for a sum of Rs.28,000/. This sale was pre-empted by the respondent by filing the suit in which he claimed preferential right of pre-emption being a real brother of the vendor, a co-sharer in the land in dispute and a tenant of the land. He also challenged the price for which the land had been sold and stated that the sale had taken place for Rs.14,000/- only.
2. The suit was contested by the appellants on various pleas which inter-alia included estoppel.
The trial court framed six issues on which . The evidence of the parties was recorded.
3. On 30th of April 1976 the suit of the respondent was dismissed by the trial Court. It was held that the respondent-plaintiff being the brother of the vendor had a superior right of pre-emption. The trial court also found that the sale had taken place for Rs.28,000/-. However under issue No.4 it came to the conclusion that the appellant was estopped by his own at and conduct from filing the suit and dismissed it.
4. Aggrieved by this decision, the respondent-plaintiff went in appeal which was accepted by the Additional District Judge Sheikhupura on 8th of December, 1976. The lower appellate court set- aside the finding of the trial court on issue No.4 and held that the respondent was not estopped from filing the suit. It, therefore, passed a decree for possession in favour of the respondent on the payment of Rs.28,000/- as the sale-price. This regular second appeal, has been filed by the vendee/defendant to assail this judgment and decree.
5. It has been contended by the learned counsel for the appellants that the lower appellate court while deciding the appeal has misread the record and has failed to consider material evidence. I find force in this contention of the learned counsel. The Additional District Judge in his impugned judgment has observed that only one witness namely Faqir Muhammad was examined by the respondent to prove the plea of estoppel. The correct factual position however, is that the appellants had produced not only Faqir Muhammad but to other witnesses namely Ghulam Muhammad DW 1 and Shah Muhammad DW 2 both of whom had stated that the appellants were party to sale and was instrumental in bringing it about. The lower appellate court appears to be quite oblivious of the testimonies of these witnesses and has acted under a misconception by observing the statement of the solitary witness produced by the respondent namely Faqir Muhammad was not sufficient to prove estoppel or waiver. The lower appellate court was required by law to have considered the entire evidence produced by the parties and to have then decided the issue, more so when the finding of trial court was being reversed by it. It is also to be pointed out that it was the duty of the appellate Court to have dealt with the reasoning of trial Court which had led it to take a contrary view. The observations of the Supreme Court in Madan Gopal and 4 others Vs. Maran Bepari and 3 others (P LT> 1969 S.C. 617) are instructive.
It appears that the Additional District Judge was also labouring under misconception that it was necessary to produce some documentary evidence to prove waiver or estoppel. As has been held by the Supreme Court in Baari and 4 others vs. Salehon and three others (PLD 1972 S.C. 133) Naseer Ahmad vs. Arshad Ahmad (PLD 1984 S.C.403), waiver or estoppel can well be proved by- producing oral evidence. The Addl. District Judge was under a legal obligation to consider the entire evidence and then decide whether or not it was sufficient to sustain the plea of waiver and estoppel.For the foregoing reasons, this appeal is accepted, the judgment and decree of the Additional District Judge, is set aside and the case is remanded to the District Judge, Sheikhupura for its re-decision according to law who may hear the appeal himself or entrust it to any Additional District Judge. Since the appeal arises out of a suit filed as far back as 1972, it will be decided within a period of three months form today, the parties are left to bear their own costs.