MUNIR A. SHEIKH, J.-- This judgment will dispose of Civil Appeals No. 638 and 639 of 1997 as common questions of law and fact are involved in both these appeals.
2. Mst. Zarina etc. Sold land in dispute to Amanullah and Habibullah respondents. The appellant in these appeals filed a suit to pre-empt the said sale. The suit was Contested by Amanullah and Habibullah vendees. Trial Court through judgment dated 19.5.1992 decreed the suit. It was held that plaintiff shall pay an amount of Rs. 65621/6 which included charges etc., instead of Rs. 77000/- Amanullah did not file appeal against the judgment and decree whereas Habibullah, the other vendee, filed appeal which was partly accepted through judgment dated 29.1.1995 by learned District Judge by holding that notice as regards Talb-iIshhad was in fact issued in the name of Amanullah, who did receive the same, therefore, the suit to the extent of 1/2 share purchased by him was decreed whereas suit qua Habibullah was dismissed for non-compliance of requirement of Talb-i-Ishliad. Two revision petitions, one by the plaintiff, challenging the dismissal of the suit qua Habibullah and the other by Habibullah, challenging the decree to the extent of 1/2 share qua Amanullah were filed before the Peshawar High Court, Dera Ismail Khan Bench. The High Court dismissed the revision petition impugned judgment dated 7.6.1996 on the following grounds:--
(a) Notice regarding Talb-i-Ishhad was jointly given, which was not legal and valid compliance of the relevant provisions of law as to each vendee notice should have been separately issued.
(b) In the notice of Talb-i-Ishhad no mention had been made about making Talb-i-muwathibat, which was necessary as per Section 13 of the Pre-emption Act was interpreted in Muhammad Ramzan v. Lal Khan (1995 SCM R 1510).
3. By applying provisions of Order 41 rule 4 read with rule 33 CPC, the suit as a whole was dismissed against which two appeals by leave of the Court are directed.
4. Learned counsel for the appellant contended that discretion under Order 41 rule 4 read with rule 33 has not been exercised judicially by the High Court. The first appellate Court did not exercise the said discretion for the reasons that Amanullah had not filed any appeal against the judgment and decree of the Trial Court. Before the High Court also Amanullah did not file any revision to challenge the decree qua half portion of the land falling to his saree and only Habibullah, against whom the suit had been dismissed by the first appellate Court, filed the revision petition.
5. In the revision petition, High Court was to satisfy itself whether the judgment passed by first appellate Court suffered for any irregularity amounting to illegality or jurisdiction not vested in the Court, was exercised or exercise of jurisdiction was refused on erroneous assumption as if it not vest in the Court. None of these criteria was considered while reversing judgment of the first appellate Court in dismissing the suit of the appellant in toto.
6. No doubt discretion is vested in the appellant Court under Order 41 rule 4 read with rule 33 to reverse the decree and judgment of the lower Court in favour of anon-appealing party in an appeal or a revision petition but, according to principles laid down by superior Courts, this discretion is to be exercised keeping in view the attending circumstances of the case judicially on relevant consideration having logical nexus with the object of law.
7. Right of pre-emption, being a right of substitution, therefore, in this case if Amanullah felt satisfied of decree passed against him for 1/2 share and accordingly did not object to the same, the same could not be interfered with in the revision petition filed by Habibullah co-vendee, against whom the suit had been dismissed. There is nothing on the record to show that Amanullah had, in the revision petition of Habibullah, made any request oral or in writing that decree passed by first appellate Court against him should also be set aside and he did not want to allow the preemptor to get 1/2 share of the land in the sale. It is well established law that a vendee, even without any suit could concede to the pre-emptor his right, out of Court and transfer the property to him in recognition of that right. In this case, inaction of Amanullah co-vendee of not challenging the decree _passed against him did constitute an act of his agreement to give 1/2 share of land in the sale to the pre-emptor, therefore, discretion under Order 41 Rule 4 read with Rule 33 CPC has not been exercised properly and judicially.
8. As regards findings of Courts below that notice was received only by Amanullah to whom it was addressed, it is based on postal receipt placed on the record read with evidence of postal Clerk.
These findings are perfectly in accordance with the evidence on record, which we hereby affirm and hold that decree was rightly granted against Amanullah co-vendee to the extent of 1/2 share.
9. Learned counsel for the respondents argued that the findings of the Courts below as to quantum of amount of consideration should be reversed for the sale in fact was made for an amount of Rs.
77000/-. We have gone through the record and found that no case has been made out for interference in the said findings of fact recorded by Courts below for there is no misreading or non- reading of any material piece of evidence, therefore, the argument is rejected.
10. For the foregoing reasons, both the appeals are accepted , judgment dated 7.2.1996 of the Peshawar High Court passed in civil revision Nos. 41 and 44 of 1995 set aside and that of the first appellate Court dated 29.1.1995 is maintained and restored with the modification that Haji Ghulam Sarwar appellant/plaintiff shall deposit '/2 of Rs. 65621/6 i.e. Total consideration amounting to Rs.
32810/53 within two months from today in the trial Court, failing which the suit against Amanullah shall also stand dismissed without any further order. Parties are left to bearing their on costs.