KHALID PAUL KHWAJA, J.- The above captioned Civil Revision has arisen out of the following facts:
2. On 5.2.1975 through a registered sale deed Muhammad Ali etc, vendors sold agricultural land, measuring 14 marlas, situate in village Mananwala Karpal Singh, Tehsil and District Sheikhupura to Ahmad Din vendee-petitioner for an ostensible price of Rs. 1000/-. On 18.12.1975 Abdus Sattar pre- emptor respondent instituted a pre-emption suit for the possession of the said land claiming superior right of pre-emption qua the vendee-petitioner on the basis of his being an heir of the vendors and a co-owner in the suit land. He asserted that the actual price of the suit land was Rs.
500/-but in order to ward of pre-emption a fictitious and inflated price of Rs. 1000/- was mentioned in the sale deed.
3. The vendee-petitioner contested the suit, denied the preferential preemptive right of the respondent and maintained that the price of the suit land was Rs. 1000/- which had been fixed in good faith and actually paid. He also pleaded that the respondent had taken active part in finalizing the bargain of sale and therefore, was estopped from pre-empting the said sale. He also raised certain other legal objections.
4. On the pleadings of the parties the following issues were framed:
1. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD.
2. Whether the Zar-e-Panjam has not been deposited within time, if so its effect?
3. Whether the suit is collusive and had been brought for the benefit of the vendors? OPD.
4. Whether the plaintiff is estopped to file this suit?
5. Whether the ostensible sale price was fixed or paid in good faith?
6. What is the market value of the suit land?
7. Whether the plaintiff has superior right of pre-emption?
8. Relief.
5. The parties led their evidence on the above issues. After considering the said evidence and hearing the parties' learned counsel the learned (rial court (Civil Judge 3rd Class, Sheikhupura) decided issues No.1 to 3 and 7 in favour of the pre-emptor respondent. He also found that the price of the suit land was Rs. 1000/- which had been fixed in good faith and actually paid. In view of the said finding he did not feel the necessity of determining the market value of the said land. On issue No 4 the learned trial court came to the conclusion that at the time of the sale the appellant had given an understanding by his conduct to the vendee that he would not file a suit for pre-emption and thus had 'intentionally relinquished his right of pre-emption'. Consequently, vide judgment and decree dated 7.11.1978 the respondent's dismissed with costs.
6. Feeling aggrieved the respondent went in appeal to assail the findings of the learned trial court on issue No.4. The petitioner did not file any appeal or cross objection. The learned District Judge, Sheikhupura vide judgment and decree dated 5.4.1979 accepted the appeal, set aside the decree passed by the learned trial court and decree the respondent's pre-emption suit for the possession of the suit land subject to the payment of Rs. 1000/-. The respondent was directed to deposit the said amount in the trial court on or before the 16th June, 1979, failing which his suit as well as the appeal would be considered to have been dismissed with costs.
7. Through the instant revision petition the vendee-petitioner has brought under challenge the aforesaid decree which the learned District Judge had passed against him.
8. I have heard the parties' learned counsel and have also gone through the record.
9. The controversy between the parties is limited to the question as to whether the respondent pre- emptor was estopped from pre-empting the sale in dispute. The plea of estoppel, as set out in the written statement, was based on the ground that the respondent himself had got the bargain of sale finalized and therefore, by his conduct he was estopped from bringing a pre-emption suit. In the written statement this plea is contained in preliminary objection No.4 which reads as follows: iafttJ/. , J r , / ** 9 m* * -m j! C [(urdu Text)] Again, the said plea is reasserted in para No.4 of the written statement on facts which is as under: , y * [(urdu Text)] During the trial the petitioner did not produce any evidence in support of the above plea, rather he introduced a different case in evidence which he led before the trial court. Supported by Ibrahim DW4 and Abdur Rashid DW-2, Ahmad Din appellant appearing as DW-3 asserted that the respondent was present at the time of the striking of the bargain of sale and had agreed not to bring a preemption suit. The case which the petitioner tried to set up in evidence was totally inconsistent with the plea raised by him in his written statement and therefore, the same could not be taken into consideration.
10. Learned counsel for the petitioner has submitted that the plea of estoppel was established even from the statement of respondent's own witness namely Muhammad Shafi DW-2. Perusal of record shows that in cross- examination Muhammad Shafi PW had stated that it was correct to suggest that the petitioner had told all the relatives (of the vendor) including the respondent that the he was about to purchase the suit land and that they all gave him the permission. This admission supports the petitioner's plea raised during the evidence, which was inconsistent with his original stand set up in the written statement and therefore is of no help to him. The new plea itself does not deserve consideration.
11. There is nothing on record to show that the suit land was ever offered to the respondent and he had declined to purchase it. It is settled law that mere presence of the pre-emptor at the time of the bargain of sale would not constitute estoppel against him. Learned lower appellate court has rightly held that the estoppel as pleaded by the petitioner had not at all been proved by evidence.
Its findings are based on the correct appreciation of evidence on record and the law laid down on the subject. The impugned judgment and decree do not suffer from any material irregularity and therefore, call for no interference in exercise of the revisional jurisdiction of this court. The present revision petition has no merit and is dismissed with costs.