ARSHAD ALI Versus Haji MUHAMMAD ALI

The facts are that the respondent brought a pre‑emption suit against the r ‑ appellants which was decreed by the learned trial Court. Their first appeal also failed. The unsuccessful vendees have assailed the judgment and decree dated 22 3‑1978 passed by the learned first appellate Court t rough this second appeal.

2. The appellants contested the suit inter alia on the ground of estoppel in respect whereof issue No.1 was formulated. As a result of the trial Court's appraisal of evidence on the record, this issue was decided in favour of the respondent. It transpires from the impugned judgment that before the learned ‑ First Appellate Court, the appellants called in, question the trial Court's fin din on issue No.2 only, which deals with the sale price of the land in dispute. The trim Court assessed its market value at Rs.8,000. However, the learned First Appellate Court relied upon the Sub‑Registrar's endorsement on the sale‑deed and held that sale price of Rs.12,000 claimed by the appellants was fixed in good faith and actually paid. The decree of the learned trial Court was altered accordingly and the first appeal accepted to that extent only.

3. It is now argued that the issues regarding superior right of pre‑emption and estoppel were argued before the learned Additional District Judge but he failed to make any reference thereto in the impugned judgment. The correctness of the observation made therein that only issue No.1 was argued, was thus seriously disputed by the learned counsel for the appellants.

4. From the perusal of the memorandum of first appeal I find that the ground challenging the trial Court's finding regarding respondent's superior right of pre‑emption was not urged in the memorandum of first appeal. Had the issues regarding estoppel and the right of pre‑emption, been argued before the learned' Additional District Judge, there is no reason to believe that the latter omitted to notice the same and incorrectly stated in his judgment that the appellants confined their attack to issue No.2 only. There is nothing on the record to suggest that the issues referred to by the learned counsel were also stressed. If it is a question of making a choice between the appellants' allegation and the judicial l record, I shall lean towards the latter. I am, therefore, unable to accept the '6bmission that issues in question were also urged before the learned Additional District Judge. There is thus, no merit in this second appeal.

5. For the foregoing reasons I do not find any valid ground to disturb the judgment and decree of the learned First Appellate Court. 'this second appeal is, therefore; dismissed, but the parties are left to bear their own costs.

M.Y.H./2734/L Appeal dismissed.