' SHAFIUR RAHMAN, J.--- This appeal has come up for hearing after notice to parties on an application moved by the appellant for restoration of the status quo order. This appeal was filed as a petition for leave to appeal but has been treated as a direct appeal and on that account held to be barred by 23 days. The appellant has sought condonation of delay on the ground that he remained under the impression that it was a case of leave to appeal but the office informed him that the appeal lay as of right. As a petition for leave to appeal it was within time but not as a direct appeal. We condone the delay.
2. The appellant was the pre-emptor who succeeded in the trial Court in pre-empting an ostensible exchange on the ground that he was a co-owner in the estate where the land sold was situate. The judgment was delivered on 29-111987. The appeal of the vendee failed before the District Judge on 29-2-1988. The High Court in revision set aside both the judgments on the ground that in view of the judgment of this Court in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 no decree could be passed in a pre-emption suit after 31-7-1986 on the ground of being co-owner in the estate.
3. The learned counsel for the appellant contended that in fact a ground of contiguity and easement had also been taken but no decision had been given on it and independently of co- sharership, such grounds could still be available to him for claiming superior right of pre-emption.
On an examination of the memorandum of appeal, we find that no such ground has been taken up in the memorandum of appeal, none appears in the judgments filed and from no other material otherwise brought to our notice except the plaint. The assertion in the plaint was clearly denied. It required proof. If proof had not come at appropriate stage that would not justify the remand of the case.
4. In the circumstances no case is made out and the appeal is dismissed with costs.