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Civil Petition for Special Leave to Appeal No. 30 of 1972, decided on 6th October 1972.

(On appeal from the judgment and order of the Lahore High Court, dated the 10th November 1971, in L. P. A. No. 9 of 1965):

Punjab Pre‑emption Act (I of 1913),

S. 22‑Defendant taking out of Court during pendency of appeal amount of pre‑emption money deposited in Court‑No stay given in regard to withdrawal of pre‑emption money‑Defendant, held, not estopped from pur suing his appeal but retained his locus standi to prosecute it.

Qudratunnisa Bibi v. Abdul Rashid and another I L R 48 All. 616 ; Iftikhar Ali v. Thakur Singh (1912) 15 1 C 347 ; Sundar Das v. Dhanpat Rai 1907 P R 16 and Iftikhar Ali and others v. Thakur Singh (1912) 83 P R 298 ref.

Gul Muhammad Butt, Advocate Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 6th October 1972.

This leave petition is from the order of a Division Bench of the High Court at Lahore allowing the Letters Patent Appeal of defendant‑respondent and dismissing the plaintiff‑pre‑emptor's suit.

The petitioner brought a suit for pre‑emption against respondent Mohammad Khan in respect of the land that the latter had purported to obtain from respondent Kala Khan by way of exchange. It was claimed that the exchange was a cloak to defeat the right of pre‑emption.

The defendant resisted the suit on the ground that it was a genuine transaction of exchange and that the petitioner had waived his right of pre‑emption inasmuch as he was present at the time of exchange.

The trial Court held that the transaction was a sale and that the petitioner did not acquiesce in the transaction; and it accordingly decreed the suit on payment of Rs. 950 which was held to be the market price of the land in dispute. Respondent Mohammad Khan failed in his first as well as second appeal, but succeeded in the Letters Patent Appeal.

The Letters Patent Bench held that respondent Mohammad Khan obtained the land in dispute in exchange for his own land, and that no cash consideration had passed between him and respondent Kala Khan in respect of the disputed land.

It has been contended before us that inasmuch as respondent Mohammad Khan withdrew the pre‑emption price during the pendency of his Letters Patent Appeal on 15‑1‑19 72, the appeal failed.

It appears that no stay in regard to the withdrawal of the pre‑emption money had been given. The money having been withdrawn after the appeal had been filed, it cannot be said that the respondent was estopped from pursuing his appeal and that he lost his locus standi to prosecute it. The learned Advocate for the petitioner has cited two cases before us. Both these cases support the view that we have taken. In the case of Qudratunnisa Bibi v. Abdul Rashid and another (I L R 48 All. 616), which is a similar case, it was observed as follows :

"The respondents have raised a further point before us that, inasmuch as the defendant vendee has taken out of the Court the amount of pre‑emption money, deposited by the plaintiffs to her credit, after filing of the appeal, she is disqualified from proceeding with the appeal. The learned Vakil for the respondents has not been able to place before us any authority in support of this view. The plaintiff has taken out execution of the decree and has either obtained or is seeking to obtain possession of the property. In the meantime, the defendant, in order that the money may not lie without interest, has taken it out. There is authority for the view that such a conduct on her part does not amount to estoppel. We may only refer to the cases of Iftikhar Ali v. Thakur Singh ((1912) 15 1 C 347), and Sundar Das v. Dhanpat Rai (1907 P R 16), of the Punjab High Court, where such a view has been followed. We therefore, think that there was no estoppel against the appellant."

In Iftikhar Ali and others v. Thakur Singh ((1912) 83 P R 298), an objection similar to the present contention was raised but overruled.

We find no substance in the present petition and it is accordingly dismissed.

Petition dismissed.

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