On 8th of January, 1978 Shafique Ahmad, appellant, herein filed a suit for possession through pre- emption with respect to an area of 7 Kanals 4 Marlas of land situate in Mauza Chhichharwali Tehsil and District Gujranwala which had been purchased by the respondent No.l Jamiat Khan from its owner Muhammad Aslam by an oral sale, evidenced by mutation bearing No.5447 sanctioned on 27th of December, 1974, for a consideration of Rs.10,000. The superior right of pre--emption was claimed by the appellant as being the son of Muhammad Aslam vendor. A part of this land was subsequently transferred during the pendency of the suit by Jamiat Khan respondent No.l to Niaz Ahmad on 9th of May, 1975 who was also impleaded as a defendant.
2. The suit was resisted by both the respondents who filed separate written statement in which it was averred inter alia that the appellant/plaintiff was estopped by his own act and conduct from filing the suit and also that the sale was not pre-empitible. The relationship of the appellant- plaintiff with the vendor was not denied but it was stated that respondent No.l was a tenant of the land and as such had a superior right of pre-emption.
The trial Court framed ten issues in the suit, on which the parties produced their evidence. This suit was decreed by the Court on 10th of October, 1978. However, on appeal filed by the respondent No.l, the case was remanded by the Additional District Judge, Gujranwala, after framing an additional issue.
3. On 28th of May, 1985 Mr. Mushtaq Ahmad Khalid, Civil Judge, Gujranwala dismissed the suit of the appellant in view of his finding on issue No.Ll under which it was held that the suit had been filed by the appellant in collusion with his father Muhammad Aslam, the vendor and the appellant was as such estopped from filing the same. All other issues were, however, decided in favour of the appellant.
4. Dissatisfied with this decision, the appellant went in appeal which was dismissed by an Additional District Judge on 23rd of November, 1985. Although the lower appellate Court did not reverse the finding of the trial Court on issue No. 3 relating to estoppel, the dismissal of the suit was maintained on the ground that the disputed land had been attained urban character during the pendency of the suit and was as such not pre-emptible. Hence, this Regular Second Appeal: 5.Mr. CA. Rehman, learned counsel for the appellant, has contended that in a suit for pre-emption, it is the nature of the land as at the time of sale, which determines whether the transaction was pre-emptible or not and any subsequent change in its character is not relevant. This contention of the learned counsel is well founded and finds ample support from law. In Jiwa v. Boota and others 1912 PLR 77 it was held that in determining whether or not a piece of land is for pre--emption purposes agricultural, the time is to look at is the time when the sale is made. Reference may also be made to Mst. Sardar Begum and others v. Muhammad Ilyas and others 1983 CLC 1570. It is clear from mutation of sale Exh.Pl itself that the land, at the time of its sale was agricultural in character.
This fact further finds support from the entries in Khasra Girdawari Exh.P7. The A finding of the Additional District Judge, on issue No.Ll-A is thus not sustainable.
6. On this finding, the appeal merited acceptance. But Ch. Muhammad Anwar Bhinder, learned counsel for respondents has supported the decree of dismissal of the suit passed by the Additional District Judge by challenging the finding on the issue of estoppel which had been decided by him against the respondents. Order 41, rule 22 of the Code of Civil Procedure, allows a respondent to support the decree on any ground and while doing so can assail the findings on these issues which had gone against him without filing any cross-- objections.
Mr. CA. Rehman, the learned counsel for the appellant, however, objected to the re-opening of this controversy on the ground that estoppel and waiver are questions of fact and cannot be gone into m a second appeal under section 100 of the Code of Civil Procedure. He submitted that it would be anomalous to allow the respondents to raise such questions in a second appeal though as an appellant, he could not have done so. This argument has no force. Sections 100 and 101 of Code of Civil Procedure on a plain reading, debar an appellant from agitating in appeal a question of fact but no such restriction has been placed on the right of the respondent under Order 41, rule 22 of the Code of Civil Procedure to support the decree which permits him to do so on any ground which has been decided against him by the appellate Court even though it may relate to questions of fact. In Faqir Muhammad v. Muhabbat Khan etc. PLD 1958 Lah. 918 it was observed that:- "There would seem to be another hurdle in the way of the respondents for taking this plea, but that too is only apparent. The finding. Of the learned District Judge on the question of abandonment is, according to learned counsel for the appellants, a finding of fact which is not liable to be attacked in second appeal. This contention is without force. There is only section 100, C.P.C. Which debars an appellant from agitating a question of fact for he is confined by the words of that section to an appeal on questions of law only. There is no provisions which debars a respondent from challenging a finding of fact in second appeal. On the other hand Order XLI, rule 22, C.P.C. Expressly allows the respondent to "support the decree on any of the grounds decided against him in the Court below. Even otherwise, as will be presently explained, the judgment of the District Judge on issue No.2 suffers from serious errors of law and misreading of evidence and for this reason also the respondents cannot be stopped from raising this plea.
9. Coming to the issue of estoppel, it will be remembered that the trial Court, on the basis of the evidence, had come to the conclusion that the appellant/plaintiff was estopped by his own act and conduct from filing the suit which was held to be collusive between him and the vendor, his father. While coming to this conclusion, the trial Court, not only noticed the relationship between the parties, but had also took into account the various factors established on the record like the age of the plaintiff/pre-emptor, the fact that he was living with his father and also that both were working together. The trial Court had also noted that PW.1 Abdul Ghani had deposed that the vendor was present outside the Court and had brought the witness to the Court for having his statement recorded. The Additional Distric Judge reversed the findings of the trial Court in this respect on wholly untenable grounds without applying his mind to the evidence on the record by merely observing that the factors noticed by the trial Court were not sufficient to prove waiver or estoppel. Since the lower appellate Court was reversing the finding of the trial Court, it was incumbent upon it to have not only taken the entire material into consideration but also advert to the reasoning which prevailed with the trial Court for taking the contrary view. Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 17.
10. As the findings of the Courts below are at variance I have compared the two decisions and have found that judgment of the District Judge on this issue is D not sustainable and also appears to be contrary to the rule laid down in Imam and 7 others v. Said-ur-Rehman PLD 1984 SC 415.
Admittedly, the appellant/pre-emptor is the son of Muhammad Aslam vendor. From his cross- examination it is quite apparent that he was totally unaware about the particulars of the sale in respect of which the present suit filed. This could justifiably lead to an inference that the suit in fact had been filed in his name by his father who was prosecuting it. PW.1 Abdul Ghani, the maternal -- uncle of the plaintiff, stated in his cross-examination that the vendor Aslam was standing outside the Court and the witness had been brought by Aslam to the Court for giving evidence. While appearing as PW.4, it was admitted by the plaintiff that at the time when he filed the suit he was 18 years of age and also that there was no dispute between him and his father and they were living together. He professed his ignorance about the presence of his father outside the Court which fact stood admitted by his own witnesses. No reliance can be placed on the statement of PW.3 who stated that the plaintiff and his father were doing separate business, as he was contradicted in this behalf by PW.1. Though the witness claimed to be closely associated with the defendant, he was not aware as to whether the parties were living together or not. He tried to improve the plaintiff- appellant's case by stating that the plaintiff was living with his mother whose relations with his husband i.e. Father of the appellant were strained. This statement stand contradicted by the testimony of the plaintiff himself. This being the position the trial Court was quite correct in holding that the plaintiff was estopped from filing of the present suit. Observations of the Supreme Court in 1 Imam and 7 others v. Saif-ur-Rehman PLD 1984 SC 415 are fully applicable. In Ramzan v.
Muhammad 1984 CLC 590 it was held that where father and sons were both pursuing the case, collusiveness was quite obvious.
As a result of the above discussion, I reverse the finding of the lower appellate Court on issue No.3 and restore that of the trial Court and the dismissal of the suit of the appellant is up held though on different grounds. The appeal, therefore, fails and is dismissed leaving the parties to bear their own costs.