ABDUL QAYYUM Versus MUHAMMAD AKRAM KHAN
ORDER
The appeal is directed against the order of the learned Additional District Judge, Gujranwala, dated 2‑12‑1975, by which be confirmed the decree passed by the learned lower Court on 10‑4‑1969 decreeing the suit of pre‑emption.
2. Dr. Muhammad Akram, the respondent, filed a suit for possession through pre‑emption on the ground of his being an owner in the estate. The sale price mentioned in the registered deed was also disputed by him. Several issues were framed and the suit was decreed in favour of the respondent on payment of Rs.24,000.00. Against this, the appellant filed an appeal before the learned Additional District Judge, but it did not succeed The learned Additional District Judge observed that the findings of the trial Court on issues Nos. 3, 6 and 7 were not pressed before him. Only issues Nos. 1, 2. 4 and 5 relating to the jurisdiction of the Court, the pre‑emptibility of the sale, the existence of superior right and estoppel were challenged, but the counsel appearing before him conceded at the time of arguments that the decision on all these issues was correct and he had nothing to say in that matter. Consequently, the appeal was dismissed and the decree passed by the trial Court was affirmed. Against this decree, the appellant has come in second appeal.
3. The learned counsel contended that there were certain circumstance which compelled the counsel in the first appeal to concede the issues; but since those circumstances are not disclosed in the memorandum of this appeal supported by an affidavit, they cannot be taken notice of. The next contention made by him is that the sale which was the subject‑matter of pre‑emption had been declared illegal under a decree dated 7‑9‑1974. 1 had inquired about the particulars of that decree and I find that the pre‑emptor was not a party there. That suit was filed by the appellant‑vendee against Col. Abdul Hayee Khan vendor for a declaration that the sale required cancella tion for want of fulfillment of its conditions. Soon after the vendor appeared and admitted the suit and in consequence thereof the said decree was passed that the sale stood cancelled. Against this decree, the pre‑emptor, although he was not a party, filed an appeal and the learned Additional District Judge, while setting aside the decree, remanded the case for retrial. This order has been challenged by the appellant in an F. A. O. No. 6 of 1976. The contention of the learned counsel is that the non‑existence of a valid sale is the subject‑matter of an appeal between the parties, therefore, the pre‑emption matter, being ancillary to that suit, needs be stayed in the meantime.
4. I do not agree with this argument. This suit is pending sin 14‑11‑1967 and the pre‑emption decree had been passed on 10‑4‑1969. That P suit for declaration was filed on 5‑9‑1974 and was readily decreed on 7‑9‑1974 in which the pre‑emptor was not a party. A suit could be stayed under section 10, C. P. C. but the present proceedings, being much earlier in institution, cannot be stayed on account of a suit for declaration. Even otherwise the causes of action are different and one has no bearing on the other. The right of pre‑emption is not lost if the sale is retracted after once it has been exercised. The decree for declaration cannot bind the pre‑emptor even if passed against him because a cause of action which has once accrued to him would continue and in this case it has resulted in a final decree.
5. By the mere fact that no argument was addressed on any of the issues, the learned lower appellate Court was justified in dismissing the appeal. All the issues were conceded and there was no occasion for a discussion .
5. In the circumstances, the findings of the learned District Judge do not suffer from any infirmity of law and this appeal has no merits, therefore, it is dismissed in limine.
M. A. K. Appeal dismissed.