' Allah Rakha and Nawab respondents are real brothers. The latter sold the suit/appeal house to Fateh Muhammad appellant. Allah Rakha filed a suit for pre-emption. It was dismissed by the learned Civil Judge vide judgment and decree, dated 4-9-1968. On appeal by Allah Rakha pre- emptor finding on issue No,2 was reversed by the learned District Judge, Sialkot vide judgment dated 29-7-1969 and suit decreed. So, the present appeal.
2. The sole question is covered by issue No,2 "Whether the plaintiff has waived his pre-emption right?"
3. The learned Civil Judge exhaustively dealt with the evidence produced by the parties to conclude the issue in favour of the appellant/vendee while the learned District Judge argued in rigmarole to reverse the same. After having heard the learned counsel for the parties and gone through the record the finding recorded by the learned Civil Judge need be restored.
4. The case of the appellant in the written statement was that the sale had been effected with the active participation and help as well as consent of the respondent pre-emptor. Faqir Muhammad (P.W.1) admitted in cross-examination that the bargain of the suit house was settled for Rs,875. In the first instance the vendor had offered the house to the pre-emptor on sale for Rs,800, the pre- emptor/plaintiff asked him to give him credit for the sale price and so the bargain fell through. Now this is a very categorical statement and shows that the house was offered for sale to the pre- emptor for Rs,800, he had no money, asked for credit to his vendor brother, the bargain fell through and the appellant purchased it for Rs,875. Thus from the very conduct of the plaintiff it is clear that he had lost his right of pre-emption. He had no money, could not buy the house when offered at Rs,800 and so when it was purchased by the appellant for higher price i,e, Rs,875 there was no question that he would have been able to pay this price. Fateh Muhammad, appellant/defendant (D.W.5) deposed that he had purchased the house in a meeting of 15/20 persons where Allah Rakha respondent was also present. He was not cross-examined to the contrary. He is corroborated by Fazal (D.W.2) and Ahmad Din (D.W. 3). Leaving aside the evidence of the D.Ws.
Faqir Muhammad (P.W.1) has proved the case of the appellant that the appellant/respondent when offered the house for Rs,800 declined to purchase it for want of money and then it was sold to him (the appellant).
5. During the pendency of the appeal compromise deed (Exh.H/1) was tendered on behalf of the pre-emptor that his case had been admitted by the appellant. Fateh Muhammad appellant died and was represented by his legal heirs. It was disputed and matter referred to the learned Senior Civil Judge, Sialkot for recording evidence on the point and returning his finding. The learned counsel for the respondent in all fairness admitted the finding of the learned Senior Civil Judge that only Mst. Fatima Bibi, the widow, Ghulam Abbas and Zahida, the son and daughter of appellant had executed the compromise deed and not Shahida Bibi and Shamim Akhtar.
6. As per the finding recorded the pre-emptor/plaintiff having waived his right and rather being estopped to file the suit for pre-emption, it could not be in the fitness of things to give effect to the agreement (Exh.H/1) got executed during the appeal which does not seem to have come into existence in a straightforward manner, it having been put forward without two of the legal representatives being party to it admittedly.
7. The upshot is that the appeal is accepted, the decree granted by the learned District Judge is hereby set aside and that passed by the learned Civil Judge stands restored. The suit stands dismissed. The parties are left to bear their own costs.