MUHAMMAD SHARIF and others vs ABDUR REHMAN

' MUNIR A. SHEIKH, J.---This petition is directed against the judgment, dated 24-6-1999 of the Lahore High Court, Lahore whereby second appeal filed by the petitioners against the judgment of the First Appellate Court, has been dismissed.

2. The petitioners purchased the land in dispute which was sought to be pre-empted by the respondent by filing suit from which this petition has arisen. The suit was contested on the ground that the respondent-plaintiff was estopped by his conduct to file the suit. No particular of any of the act or omission, of the respondent-plaintiff were disclosed in the written statement which was sought to constitute an act of estoppel or waiver. On 'Issue No,5 which is related to the plea of estoppel, thepetitioners examined D.W.1 and D.W.2. D.W.1 stated that he was informed by the present petitioner that if he wanted to purchase the land being collateral having superior right of pre-emption may purchase the same. This witness according to him informed the petitioners that he would not pre-empt the sale. He also informed him that the respondent-plaintiff would also not pre-empt it.

3. The respondent-plaintiff when appeared as his own witness both in affirmative and after the recording of evidence of the petitioners in rebuttal was not put any question or given any suggestion that he was asked by the petitioners or the vendor before making the sale to purchase the land. By this, the learned Judge of the High Court in the impugned judgment has raised an inference that the plea that D.W.1 was approached by the petitioners was an afterthought.

4. Learned counsel for the petitioners submitted that before the High Court, the record of the suit was not available, therefore, the judgment passed by the learned Judge of the High Court is not based on perusal and examination of the record itself as such, the same is vitiated.

5. We have observed that before the learned Judge of the High Court statement of D.W.1 and D.W.2 were placed by the learned counsel for petitioners on which the findings are based. The record of the trial Court of suit is available today before us which on the previous date of hearing, was summoned. We have compared the findings recorded by the learned Judge of the High Court and the statements of D.W. I and D.W.2 in the original record and find that there is no misreading or misconstruction thereof, as such, no prejudice has been caused to the petitioners if the record of the trial Court was not available with the learned Judge of the High Court.

6. Learned counsel for the respondent submitted that the First Appellate Court which decreed the suit in appeal of the respondent was also not in possession of the original record but we find that the said Court passed express order while admitting the appeal to summon the record, therefore, the same is presumed to be available at the time of hearing of appeal.

7. Learned counsel then argued that the First Appellate Court while reversing the judgment of the trial Court in favour of the petitioners of dismissal of suit on the ground of estoppel brushed aside the evidence of D.W.1 and D.W.2 merely on the ground that no notice under section 19 of the Punjab Pre-emption Act had been issued. He says that according to this section, the notice was to be issued by the vendor to the prospective pre-emptors and not by the vendee.

8. Be that as it may, the judgment of the First Appellate Court is not based solely on section 19 of the Act whereas the same had been considered as an additional fact. The evidence of D.W.1 and D.W.2 was held to be not convincing meaning thereby that the said Court was not satisfied that the statements of those witnesses should be believed.

9. In these circumstances, the learned Judge of the High Court was justified in law to reappraise the evidence of D.W.1 and D.W.2 to arrive at a conclusion whether the appraisal of their evidence by the trial Court of its judgment of dismissal of the suit was correct. We find that the trial Court while accepting the evidence of D.W.1 and D.W.2 did not take into consideration the material fact that the case of estoppel as alleged was not put to the plaintiff when he appeared as a witness which aspect of the evidence was ignored which had material bearing upon the fate of the case, as such the said finding could safely be held to have been based on ignoring material piece of evidence.

The judgment passed by the High Court in these circumstances does not suffer from any illegality such as misreading or non-reading of any material piece of evidence, therefore, this petition has no merits which is accordingly dismissed and leave refused.