Law: N. W. F. P. Pre-emption Act (XIV of 1950)

Section: S(a)

Law: Evidence Act (I of 1872)

Section: 115

  (On appeal from the judgment and decree of the High Court of West Pakistan, Peshawar Bench, at Peshawar, dated the 13th of May 1969, passed in R. F. A. No. 21 of 1962). (a) Appeal to Supreme Court- Civil appeal-New plea--Mixed question of law and fact (depending on consideration of series of facts) not pressed in Court below-Not allowed by Supreme Court to be raised in appeal before it. (b) N. W. F. P. Pre-emption Act (XIV of 1950), S. S(a) and Evidence Act (I of 1872), S. 115 -Estoppel-Mere fact that property sought to be pre-empted was described as a "serai" in a previous litigation between different co-sharers (including plaintiff)- Would not by itself bring the property within exemption contained to S. S(a), particularly when in previous litigation nature or description of property had not been subject-matter of dispute--Plaintiff, in circumstance, not estopped from denying property as serai. In a previous litigation between different co-sharers (including the plaintiff In the pre-emption suit) the property had been described as a serai. In the previous litigation the nature description of the property was not the subject-matter of the dispute. In a subsequent suit for pre-emption the vendee resisted the suit claiming exemption from pre-emption under section 5(a) of the N. W. F. P. Pre-emption Act, 1950 and relying on Me fact that in the previous litigation to which the plaintiff was a party, the property had been described as semi, It was urged that the plaintiff in the pre-emption suit was estopped from denying the property as semi. Held: The description of the property in the previous litigation would not by itself, bring it within the exemption contained in section 5(a) of the N. W. F. P. Pre-emption Act, if in fact the property was not a serai at the time of its sale to the vendee. In the previous litigation the nature or the description of the property was not the subject-matter of dispute, and it was, therefore, immaterial as to how the property was described for purposes of its identification. In order that the plaintiff may be estopped from denying the true nature of the property as a serai in the suit for pre-emption it must be…