RAJA MUHAMMAD SABIR, J. This regular second appeal is directed against the judgment and decree of learned Additional District Judge dated 22.5.1976 whereby he dismissed the appeal of the appellant preferred against the judgment and decree passed by learned Civil Judge, Sheikhupura decreeing the suit of the respondents on 23.11.1973.
2. Brief facts of the case are that Mst. Amtal Bibi and others (not party in the suit) were owners of the land in dispute detailed in the amended plaint, situated in Mauza Jhamke, Tehsil and District Sheikhupura. A sale of the suit land measuring 71 kanals, 18 marlas was made by the aforementioned vendors in favour of All Ahmed vendee, since dead and succeeded by Allah Yar and Mst. Khurshid Begum, defendants-respondents for an ostensible price of Rs. 90001-. A consent decree regarding proprietary interest in the suit land was passed in favour of said vendee by the Civil Judge, Sheikhupura in suit No. 54/1 of 1970 on 6.2.1970. Jalal Din appellant, rival pre-emptor instituted suit No. 30/1 of 1971 on 3.2.1971 just one day after the suit of respondent No. 1 against All Ahmad vendee, who admitted his claim, whereupon learned Senior Civil Judge, Sheikhupura passed a consent decree on 26.5.1971 for possession of the suit land in his favour subject to payment of Rs. 9000/- as pre-emption money less already deposited by him as Zar-i-Panjam on or before 27.7.1971 failing which the suit of Jalal Din was deemed to have been dismissed with costs.
Certified copy of the said order is Ex.P-6.
3. Altaf Hussain alias Mushtaq Ahmad, respondent-plaintiff filed the suit, out of which the present appeal has arisen, during the life time of All Ahmad vendee for possession of the suit land through pre-emption on 2.2.1971 with the contention that he has superior right of pre-emption being owner of the Estate. It was also pleaded that the actual sale price was Rs. 5000/- and not Rs. 9000/-. The vendee A.I Ahmad contested the suit by filing written statement on 15.1.1972. Later on he died. Allah Yar and Khurshid Bibi defendants-respondents are his successors-in-interest. The rival pre-emptor Jalal Din also filed the written statement on 15.1.1972 and contested the suit. The suit was mainly contested by heirs of A.I Ahmad vendee on the ground that a consent decree for possession of the suit land had already been passed by the Civil Court in favour of Jalal Din, who had already made the payment of the entire amount to them. The price of the land was claimed to be as Rs. 9000/-.
Altaf Hussain's superior right of preemption was denied. Jalal Din also claimed superior right of pre-emption who was subsequently impleaded as co-defendant and stated that he had paid the entire amount as ordered by the Court while decreeing his suit. On the divergent pleadings of the parties following issues were framed by the learned Trial Judge:-
(1) Whether plaintiff has a superior right of pre-emption? OPP.
(2) Whether the ostensible sale price has been paid or fixed in good faith? OPD.
(3) What is the market value of the suit land? OPP.
(4) Whether decree obtained by defendant No. 2 is collusive? OPP.
(5) Whether defendant No. 2 has not fulfilled the condition of pre-emption decree as regards payment of pre-emption money? OPP.
(6) Whether the suit is not properly valued? OPP.
(7) Relief.
4. Learned Trial Judge after recording evidence and hearing the learned counsel for the parties under issue No. 1 held the plaintiff Altaf Hussain has superior right of pre-emption as compared to Jalal Din. The price of Rs. 9000/- was admitted by respondent-plaintiff to be correct, therefore, issue No. 2 was decided in the affirmative on the basis of his admission. While giving findings on crucial issue No. 5, it was held that pre-emption money was not paid by Jalal Din as directed by the Court while decreeing his suit on 26.5.1971, therefore, he failed to fulfil the condition of pre-emption decree with regard to payment of pre-emption money. Consequently the suit of Altaf Hussain was decreed on 23rd of November, 1973 against the rival pre-emptor and the vendees. He was directed to deposit the pre-emption money in Court on or before 22.12.1973, otherwise the suit would stand dismissed with costs. The appeal of Jalal Din was dismissed by learned Additional District Judge, Sheikhupura on 22.5.1976 by impugned judgment. This regular second appeal has been instituted by the rival pre-emptor (Jalal Din) against the judgment and decree of learned Trial Judge by citing Altaf Hussain as respondent No. 1, Allah Yar and Khurshid Bibi, successor-in-interest of A.I Ahmad as respondents Nos. 2 and 3 respectively.
5. Learned counsel for the appellant contends that decree dated 6.2.1970 passed in favour of A.I Ahmad was declaratory in nature and it never formed a sale, therefore, it was not pre-emptable. The sale transaction having taken place much before 12.1.1970 when A.I Ahmad filed the suit wherein the decree (Exh.P-5) was passed, therefore, the suit instituted by Altaf Hussain on 2.2.1971 was clearly barred by time. He further submits that order of restoration of the suit of respondent No. 1 does not bear the signature of the Administrative Civil Judge, thus the entire proceedings are void ab initio. On the other hand learned counsel for the respondents submit that the consent decree dated 6.2.1970 was pre-empted by Jalal Din rival pre-emptor himself, through suit No. 30/1/1971. He himself is claiming the right flowing from the consent decree, therefore, he is estopped by his own conduct to contend that the consent decree is not a sale and the suit of respondent No. 1 was not maintainable as both of them are against the same consent decree dated 6.2.1970. The rival pre-emptor having failed to pay the pre-emption money in accordance with the direction of the Trial Court, his suit stood dismissed and the Courts below are justified in decreeing the suit of respondent No. 1. He further argues that objection regarding absence of signatures of Administrative Civil Judge on the order dated 1.11.1971 was not raised in the written statement which was filed subsequently on 15.1.1972. The written statement does not disclose any such objection. Moreover that order was passed in presence of his counsel Ch. Ameer Afzal, Advocate, who filed the written statement on behalf of Jalal Din. He further submits that the concurrent findings of facts of the Courts below are based on proper appreciation of evidence and call for no interference by this Court.
6. Despite service none has appeared on behalf of respondents Nos. 2 and 3. After passing of decree in favour of rival pre-emptor, it appears that they have lost interest in the property, thus the contest is between appellant arid respondent No. 1 alone.
7. 1 have heard learned counsel for the appellant and respondent No. 1. Order dated 1.11.1971 was passed on the basis of the statement of the parties. Counsel for the appellant agreed for restoration of the suit on payment of Rs. 100/- as costs. Notice was also issued to him vide order dated 6.10.1971, copy of which is also on the file. It shows that the appellant was served with notice of the application for restoration of the suit and his counsel appeared and under his instructions made the statement on 1.11.1971 and consequently the suit was restored vide the order of even date.
The subsequent proceedings also shows that the suit was restored in accordance with law and the written statement was filed by the appellant through Ch. Ameer Afzal, Advocate on 15.1.1972. He has not raised any objection in the written statement that the order of restoration of the suit does not bear the signatures of the Trial Judge. There is a small tick mark on the order which is perhaps the initial of the Trial Judge. The objection with regard to signatures of the Trial Judge on the said order having not been taken in the written statement and further proceedings in the case and its decision on merits clearly show that the suit was restored in accordance with law. The objection of the learned counsel that on account of absence of signatures of learned Administrative Civil Judge on the order dated 1.11.1971, the entire proceedings are unlawful, is without any substance and is repelled. Such a plea was never raised in the written statement on grounds of first appeal. It cannot be validly taken at this stage. Even otherwise the record shows that there is some sort of initial under the order dated 1.11.1971 which appears to be that of the Trial Judge and it is for this reason that such an objection was not taken earlier.
8. The ground of limitation urged during argument is also of no avail to the appellant. The contention that the sale took place much earlier than 12.1.1970 when A.I Ahmad filed a suit in which decree Ex.P-5 was passed is not supported by any evidence on the record. The consent decree dated 6.2.1970 was the basic document conferring right of sale in favour of Jalal Din. The suit having been filed on 2.2.1971 is well within time and both the Courts have rightly held that the suit filed by respondent No. 1 Altaf Hussain was not barred by time. The. Appellant himself pre-empted a consent decree treating it as a sale, his objection against the suit of respondent No. 1 pre- empting the consent decree dated 6.2.1970 operates as an estoppel against him. Since it was an oral sale, the right accrued to the plaintiff on passing of decree (Ex.P-5) in favour of A.I Ahmad, predecessor-in-interest of respondents Nos. 2 and 3, which in fact reflected the sale.
9. The evidence of the parties was critically examined by both the Courts below who came to the conclusion that the appellant did not comply with the order of the Trial Court for deposit of the pre- emption money on or before 27.7.1971, his suit stood dismissed. The direction of the Court was not complied with and the admission of receipt of payment by successors of A.I Ahmad respondents Nos. 2 and 3 was not sufficient to prove compliance of the order dated 26.5.1971. He having failed to comply with the order of the Court dated 26.5.1971, his suit was rightly deemed to have been dismissed by the Courts below. The overall scrutiny of evidence of the Courts below is not open to any exception. The impugned judgment does not suffer from any legal infirmity calling for interference by this Court.
10. For the fore-going reasons, there is no merit in this appeal and is dismissed without any order as to costs.