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Regular Second Appeal No.429 of 1975, decided on 31st January, 1987.

---S.15--Specific Relief Act (I of 1877)-, S.12--Qanun-e-Shahadat Order (10 of 1984), Art.118--Civil Procedure Code (V of 1908), S.100- Pre-emption suit by daughter against sale of land by her father--A stranger to such suit, obtaining consent decree of pre-empted land on plea of specific performance of contract, during pendency of pre-emption suit--Decree-holder impleaded as party in such suit- Pre-emption suit decreed by Trial Court but dismissed by First Appellate Court--Pre-emptor not appearing as her own witness to rebut evidence of decree-holder about factum of agreement to sell in his favour earlier, to subsequent sale--Decree granted in favour of decree-holder with regard to agreement to sell also not challenged by pre-emptor by mean of appal or otherwise while putting in amended plaint after decree--holder was impleaded in pre-emption suit, pre-emptor did not say a word about agreement to sell, on basis of which decree had bee massed--Finding of First Appellate Court on basis of evidence on record, being justified, no exception, held, could be taken to same in second appeal.

S.M. Rashid and Abdul Aziz for Appellant.

Nemo for Respondent No.1.

Malik Abdus Sattar- Chughtai for Respondent No.2.

Date of hearing: 31st January, 1987.

Facts giving rise to this regular second appeal are that the appellant, Mst. Ayesha, filed a suit for possession-of certain lard, through pre-emption. This land was purchased by respondent No. 1, Shamas-ud-Din, from her father, namely, Suleman, by means of an oral sale which was followed by mutation No.190, attested on 20th February, 1969. In the mutation, sale price was given as Rs.7200. It was, however, urged by the appellant that the sale had taken place, in fact, for Rs.2880 and the sale price of Rs.7200 cap fictitiously mentioned in the mutation with a view to defeating pre-emptive rights. The said pre-emption suit was filed on 13th December, 1969. It was still pending when, on 7th January, 1971, respondent No.2, 13ashir Ahmad, brought a suit against the said Suleman and respondent No.1 for specific performance of an agreement to sell the said land. It was urged by respondent No.2 that on 18th November, 1968 the said Suleman executed a deed agreeing to sell the land to him for Rs.3000 and had also received the whole of the sale price. In the suit for specific performance, respondent No.1 submitted written statement confessing judgment. In view of his written statement, it was stated by Suleman, before the Civil Judge who was seized of the suit for specific performance, that if respondent No.1 had no objection to the suit. being decreed, he too would not raise any objection in the matter. On this, suit for specific performance was decreed on 7th March, 1972. Suit for specific performance was still pending when respondent No.2 made an application for being impleaded as a party to the pre-emption suit brought by the appellant. The appellant and respondent No.1 did not object to his application and hereupon respondent No.2 was made a party to the pre-emption suit. By the time respondent No.2 filed written statement in that suit, his suit for specific performance had been decreed. It was, therefore, pleaded by him that as his suit had been decreed, suit for pre-emption could not proceed. It was also maintained by him that Suleman had agreed to sell the land to him before he had sold it to respondent No.1.

2. Before respondent No.2 became a party to the pre-emption suit, following issues were framed by the Civil Judge who was hearing the said suit:-

(1) Whether the plaintiff has got superior right of pre-emption OPP.

(2) Whether a sum of Rs.7200 was fixed in good faith and actually paid as the sale price of the suit. land OPD.

(3) If not what was the market value of the suit land at the time of sale ' OP. Parties. '

(4) Relief

After filing of the written statement by respondent No.2, the following additional issue was struck by the learned Civil Judge:-

3-A Whether vendor Suleman had made agreement to sell the land to defendant No.2 prior to the sanctioning of mutation No.190. If so, its effect

3. The learned Civil Judge decided issue No.1 in favour of the appellant but issue No.2 against her. Issue No.3-A was also decided in her favour. In result, her suit was decreed on payment of Rs.7200. Respondent No.2 went in appeal before an Additional District Judge. He reversed the finding of the learned Civil Judge on issue No.3-A. View taken by him was that possession of the disputed land had been delivered to respondent No.2 and he had also paid whole of the gale price in pursuance of the agreement to sell. Thus, according to the learned Additional District Judge, complete sale of land in favour of respondent No.2 had taken place and as such subsequent sale in favour of respondent No.1 was totally ineffective. He, therefore, accepted the appeal and dismissed the suit of the appellant. Feeling aggrieved by his judgment and decree, she has come up in second appeal to this Court.

4. It was contended by learned counsel for the appellant that the agreement to sell, relied upon by respondent No.2, was collusive and, therefore, of no legal effect qua the sale pre-empted by the appellant or the suit filed by her. In reply, it was submitted by learned counsel for respondent No.2 that the plea of collusion was never raised by the appellant nor there was any evidence thereon. According to him, the agreement to sell had been proved by respondent No.2 and the decree passed on the basis thereof had attained finality due to its having not been challenged by any one.

5. It is not denied that a consent decree was passed in the suit for specific performance brought by respondent No.2 on the basis of the agreement in question. In that suit the appellant's father, Suleman, was one of the defendants. In the pre-emption suit, Suleman was the only witness of the appellant to make statement regarding the said agreement. There he tried to help the appellant by making a ridiculous statement, namely, that he entered into the said agreement with respondent No. 2, for the benefit of respondent No.1, and that the sale price .of Rs.3000 was also paid by respondent No.1. This was never his position earlier nor there is any plea of the appellant in this regard. The appellant did not appear as her own witness to rebut the evidence of respondent No. 2 on issue relating to the agreement in question. Evidence of respondent No.2 in this behalf consists of his own statement and that of respondent No.1. Besides, there is consent decree passed in his favour in the suit for specific performance. It is noteworthy that the, said decree was not challenged by the appellant by means of an appeal or otherwise. When respondent No.2 made application for being impleaded as a party to her pre-emption suit, she agreed to his becoming a party thereto. While putting in amended plaint so as to make him a party to the suit, she did not say a word against the agreement in dispute. Even after the passing A of the decree in the suit for specific performance she did not attack the decree by amending her plaint or otherwise. Issue No.3-A was framed by the learned trial Court in view of the averment of respondent No.2 and not in response to any initiative on the part of the appellant. For reasons already given, statement of Suleman, which is the only evidence of the appellant regarding the said agreement, does not inspire confidence. By agreeing the grant of decree in the suit for specific performance, he had also, in a way, admitted having entered into the agreement in question. In the circumstances, the learned Additional District Judge was justified in reversing finding of the learned trial Court on Issue No.3-A.

6. As for argument of learned counsel for the appellant that the agreement was collusive, I agree with learned counsel for the respondent No:2 that there is no plea of the appellant in this behalf. There is also, no evidence of collusion. I am, therefore, unable to accept his plea of collusion.

7. Learned counsel for the appellant did..' not question any findings of the learned Additional District Judge except the .one on issue No.3-A which, for reasons already given, I would like to uphold.

8. In result, I find no force in this appeal and dismiss it, with costs.

A.A./A-50/L Appeal dismissed.

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