This is second appeal from the judgment and decree, dated 9-2-1970 passed by the learned District Judge, Sahiwal whereby he dismissed the appeal of the appellant.
2.The background of the case in brief is that Eisa Khan respondent No.2 sold the suit land to Muhammad Hussain appellant through his attorney and son Muhammad Hassan vide Mutation No. 108, dated 26-8-1967. Muhammad Taqi respondent now represented by his legal heirs filed a suit for pre-emption claiming superior right on the ground of being son of the vendor Eisa Khan.
The suit was contested initially. However, at the stage of recording of evidence, the' parties chose its decision on the basis of oath. On 10-6-1969 a statement was made by the plaintiffs-respondent before the learned trial Court that if the defendant-appellant makes oath on Holy Qur'an as to the price paid by him, he would accept the same. On the same day defendant-appellant accepted this offer and also stated that in case Muhammad Shaft the brother of plaintiff-respondent makes oath as to "waiver" he would accept the same. He also abandoned Issues Nos. l and 2 which had been framed by the learned trial Court. Issue No. l was as to whether the suit was barred by time and Issue No.2 was whether the suit was for partial pre-emption, if so, its effect. The case was then adjourned to 25-6-1969 for recording of the oath respectively.
3. On 25-6-1969, the defendant-appellant made oath that he had paid Rs.7,900 as the price of the suit land and that he accepts the superior right of pre-emption of the plaintiff-respondent.
Statement of Muhammad Shafi was also recorded on the said date. In view of the statements of the parties, the learned trial Court decreed the suit in favour of the plaintiff-respondent on payment of Rs.7,900 as price of the land which had to be deposited by 2-9-1969 after deducting 1/5th money already deposited by the plaintiff-respondent. This decree was challenged by the defendant-appellant in appeal before the learned District Judge, which appeal was dismissed on 9-2-1970. Hence this appeal.
4. The learned counsel for the appellant contends that the suit filed by the plaintiff-respondent was for 20 Kanals only whereas the sale comprised of 20 Kanals and 3 Marlas and the same was hit by the Principle of partial pre-emption and was, thus, not maintainable and no decree could be granted. He relies on Ghulam Muhammad etc. v. Khushi Muhammad and another PLD 1973 SC 444 in support of his contention. It is further, contended that the learned appellate Court took a wrong view of the matter in dismissing the appeal that the same was against a consent decree and that any compromise in violation of the law is neither effective nor enforceable. It is further contended that Zar-e-Panjum i.e. 1 /5th of the sale price was clot deposited by the plaintiff-respondent in time, therefore, the suit was also liable to be dismissed for this reason.
5. As against this the learned counsel for plaintiff-respondent contends that the parties having adopted a particular mode for decision of the case of their own choice and free will cannot later on be permitted to challenge the decision so made by the Court. He further contends that the decision made on oath is not challengeable thereafter. Reliance has been placed by him on Najibullah Khan and another v. Fatal Karim and 2 others 1997 SCMR 1085. It is contended that the issue as to whether the suit was for partial pre-emption had been abandoned by the appellant-defendant and that Zar-e-Panjum had also been deposited. He contends that in view of decision of the suit on the basis of oath, all these matters could not be allowed to be raised and reopened.
6. The perusal of proceedings of the suit, dated 10-6-1969 and of 25-6-1969 when the offer and acceptance between the parties took place clearly establish that the parties of their own free will and consent adopted the mode of decision of the suit on the basis of oath. First step in this direction was taken on 10-6-1969 and the suit, was adjourned to 25-6-1969 for the recording of the respective oath. No step was taken by the appellant-defendant during all this time if he had to resile from this method of decision by the Court. Instead he appeared and made oath on Holy Qur'an on 25-6-1969 as a result whereof the suit was decreed by the learned trial Court. The appellant could not, therefore, later on challenge the proceedings and the decree in appeal. In Abdul Wahab v. Habib Ali PLD 1969 Lah. 365. It was treated as a settled proposition that once al mode (procedure) is adopted by the Court on the request of the parties, the decision given in pursuance thereof should be given effect to and that the parties were estopped from challenging the mode of decision subsequently. In Atiqullah v. Kafait Ullah 1981 SCMR 162 the appellant before the learned District Judge had made an offer that the matter be decided on oath to be made by Kafait Ullah that "if he takes oath on Holy Qur'an to the effect that he had not sold the land in question to him, he would be bound by it". This offer was accepted by Kafait Ullah but Atiq Ullah thereafter made an attempt to withdraw the offer but he was (not allowed to resile. Their Lordships took the view that there was no ground in law or in equity on which the petitioner could claim the right of resiling from the solemn agreement. In the case of Najeebullah (supra) such an attempt of resiling from the commitment was not permitted.
6. In Haji Muhammad Asghar v. Malik Shah Muhammad Awan PLD 1986 SC 452 it was held that where a party to proceedings before the Court enters into an agreement of its own free-will for disposal of the matter, it cannot turn around and successfully plead that it had no legal right to consent and the Court could not act on such a consent`. It is not the case that the appellant had not consented. In such-like situations the doctrine of election, approbation and reprobation comes into play.
7. The questions now being raised by the appellant-defendant that the suit was hit by the principle of partial pre-emption or that the Zar-e-Panjum was not deposited in time has no relevance at all in view of his own consenting, arrangement for the decision of the suit on the basis of oath. He cannot be allowed to raise these issues. He is estopped by his own conduct and cannot be permitted to resile on any ground in law or in equity.