By this common judgment the above two noted revisions will be disposed of as the same judgments of the lower Courts have been impeached therein.
2.Ali Rehman's etc. Petitioners in Revision Petition No.63/87 purchased an area of 7 kanals contained in Khasra Nos.1254/2/1, 1254/2/2, 1255/1 and 1255/2 ,ituated in village Luberkot of Tehsil Mansehra through mutations numbers from 5782 to 5785 sanctioned on 8-3-1977 from Ali Gohar respondent No.3 since dead and predecessor-in-interest of respondents 4 to 7. The sale became the subject--matter of two pre-emption suits, one filed by Haji Muhammad Suleman respondent No.1 and the other by Mubarak Khan respondent No.2. These suits were consolidated and by a single judgment dated 25-3-1978 the learned trial Judge decreed the suit of Haji Muhammad Suleman on payment of purchase' money of Rs.12,853.40 while that of Mubarak Khan was dismissed. Two appeals one by the vendecs-petitioners and the other by Mubarak, the rival pre- emptor were preferred against this judgment. The appeal lodged by the petitioner ended in compromise and was disposed of in terms of this compromise on 14-4-1979. However, the appeal instituted by Mubarak was heard later on separately and was dismissed on 30-7-1980. Mubarak moved the High Court in revision which was accepted on 12-10-1980 and the appeal was remanded to the appellate Court with the direction to consolidate the appeal of Mubarak Khan and that of Ali Rehman's etc. As these have arisen from the same judgment of the trial Court and then to be f decided through a common judgment. Consequently, through the impugned Judgment the learned appellate Court dismissed both the appeals i.e. The one filed by the petitioner and the other by respondent No.2. The two revisions referred to above have been, therefore, filed against this judgment of the appellate Court.
3.The learned counsel arguing for the petitioners Ali Rehman's etc- in revision No.63/87 submitted that the learned appellate Court failed to consider the significance of the compromise and its bearing on the appeal instituted by his clients and that the relevant provisions of Order 23 Rule 3, Order 41 Rule 33 and Section 107 of the Civil Procedure Code were not taken note of. He also stressed that Muhammad Suleman respondent No.1 was estopped to contest and challenge the decree passed in favour of the petitioners as a result of the compromise arrived at between him and the petitioners in appeal. He also argued that on account of the compromise the suit of the respondent No.1 had become partial and as such could not be entertained and that as the said respondent had withdrawn the pre-emption amount, his suit after that was not maintainable and the decree in his favour had become nullity and ineffective. Learned counsel argued that in view of the Supereme Court judgment reported in PLD 1988 SC 287 no decree can now be granted in favour of Mubarak Khan petitioner in the other connected revision petition, therefore, his revision has become infructuous and liable to be dismissed on that score alone. He also described the appeal of Mubarak before the appellate Court as partial because it was in respect of half of the suit property and, therefore, prayed for its dismissal on that count also. Learned counsel representing the petitioner in Revision No.66/87 argued that his client was not bound by the compromise arrived at between the petitioners in Revision No.63/87 and respondent No.1 as he was not party to the said compromise, that there is no legal bar in decreeing suit even now and that his appeal cannot be termed as partial because he challenged that portion of the trial Court decree over which he could legally enforce his superior right of pre--emption. On the other hand, Fazal Hussain Malik while arguing for Haji Muhammad Suleman in both the revisions supported the arguments of the counsel of Ali Rehman's etc. Petitioners in respect of his stand against Mubarak petitioner and maintained that his revision has become infructuous as no decree can be granted in his favour on account of Supreme Court judgment referred to above and that his appeal being for half of the suit property was not legally maintainable. He, however, opposed the arguments of the learned counsel of Ali Rehman's etc. Petitioners in Revision No.63/87- and submitted that some of the petitioners were minors and, therefore, the compromise on their behalf could not have been accepted, that the pre-emption amount although withdrawn has again been deposited and that the point of compromise was not pressed before the appellate Court and lastly that no estoppel can be pleaded against a statute.
4. The respective submissions of both the sides were considered in the light of the relevant material and evidence on record.
5. First of all I will take up the arguments relating to compromise in order to determine its true import and significance and would discuss as to how fsx it would constitute waiver and estoppel against the parties thereto. It is importt to note that the facturn of compromise has not been denied by Haji Muhai,amad Suleman but he has tried to avoid it on certain technical grounds that as the High Court had ordered to consider both the appeals as pending and to decide these appeals on merits after both are consolidated, therefore, the compromise has lost its value. In settling down` the legal effect relating to the compromise the following admitted position will be kept in view:- (a)The compromise as it is has been admitted by both the parties: ~''' ' '~ (b)That respondent No.1 received Rs.30,000 from the petitioners because, of this compromise.
(c)That it has also not been denied that as a result of the compromise an area of 3 marlas was carved out of Khasra No.1254 and was given to Haji Suleman for use as thoroughfare and to the extent of these three marlas his suit was decreed. While regarding the remaining area of 6 kanals 17 marlas his suit was dismissed.
(d)On the basis of this compromise Mutation No 6664 was attested on 6-8--1979 in respect of three marlas in favour of respondent No.1 while regarding the remaining suit area of 6 kanals 17 marlas. Mutation No.6647 was attested on the same date in favour of the petitioner.
(e) , These mutations were given effect in the subsequent Revenue record.
(f)That in pursuance of the compromise the petitioner withdrew his pre--emption amount from the Court on 24-4-1979. (Note: although he redeposited it subsequently).
6. In view of the fact that respondent No.1 entered into a compromise with the petitioner with full knowledge of all the relevant facts, with his free consent l and besides other benefits under the compromise also, received Rs.30,000 from' the petitioner for this compromise then he cannot be permitted to take up the position that after remand by the High Court on revision filed by respondent No.2 the dispute between him and the petitioners is re-opened and that as some of the petitioners were minors, therefore, the compromise on their behalf would not be valid and that he was competent to repudiate the compromise in the proceedings in appeal after the remand. If he is allowed to take this stand that would amount A to conceding him the benefits of the compromise without bearing the burden created thereby. The law would not permit respondent No.1 to retain the benefit arising from the compromise and to repudiate the burden. Such a permission would naturally amount to allow a party to approbate and reprobate and to plead that a transaction is valid to the extent it benefits him and serves his purpose and to declare it as invalid or to repudiate its effect to the extent it burdens him with liabilities. Moreover, respondent No.1 by this compromise had agreed to relinquish those rights which had accrued to him under the decree for certain advantages given to him in the compromise. It will thus be most inequitable and unjust to allow him to deny or repudiate the compromise as in the circumstances the equitable doctrine of estoppel and .Waiver will clearly operate against him. Moreover, there is also another aspect of , the matter as respondent No.1 had admittedly withdrawn the pre-emption amount, therefore, on the basis of the mandatory provisions contained in Section 23(5) of the N.-W.F.P. Pre- emption Act, 1950 his suit stood dismissed and the subsequent order of the Court to allow him to re-deposit the said amount was not in the ambit of the Court and would, therefore, not stop the operation of the binding provisions indicated above. The withdrawal of the pre-emption amount on account of the compromise clearly amounts to relinquishment of his right under the decree and he will be debarred under the principle of waiver to re-agitate his rights. The learned appellate Court failed to consider and read all the mentioned documentary evidence in respect of the compromise in its correct perspective which tantamount to non-application B of mind and non-reading of evidence and which would justify interference under section 115 C.P.C. But as those documents are not disputed, therefore, instead of remitting the case to the appellate Court it was considered proper to determine the legal implication arising in this context in order to avoid unnecessary, prolongation of the litigation.
7.This compromise will obviously not affect the rights of respondent No.2 as he was not a party to it.
His revision will be decided on merits and his rights will be determined independent of the compromise. In his case it is admitted that no decree has so far been passed in his favour and that he has not complied with the essentials of various Talab---s which are prerequisite for enforcing pre-emptive rights under Shariat, therefore, no decree can be granted in his favour in view of the rule laid down in PLD 1988 SC 287. Moreover, in his memo of appeal before the appellate Court he had prayed for a decree of half of the suit property without any legal justification for not claiming the entire, therefore, his appeal being for a portion of the property sold, was not competent. As no right of pre-emption can be asserted over a portion of the property subject-matter of certain sale when the plaintiff could legally enforce his pre-emptive rights over the entire property, so sold.
8.1n the circumstances, Revision Petition No.fi3/87 Ali Rehman's etc. v. Haji Suleman etc is allowed to the extent that the judgments and decrees of both the learned Courts arc modified in accordance with the terms of the compromise; and la the suit of respondent No.1 Haji Muhammad Suleman is dismissed in respect of the suit land measuring fi kanals 17 marlas while the decree in his favour, regarding three marlas out of Khasra No.1254 as detailed in the compromise will remain intact. The revision filed by Mubarak Khan No.06/R7 is dismissed.
9.In the peculiar circumstances there would be no order as to costs against any party and the parties will bear their own costs.