1985 PLP 1056 (SCMR)

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S.100‑‑Second appeal‑‑Suit for pre‑emption‑‑Decree upheld in second appeal‑‑Finding of fact by High Court against plea of waiver of right to pre‑empt conclusive‑‑Finding not suffering from any infirmity maintained‑‑Leave to appeal refused. Muhammad Rashid Chughtai, Advocate and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioners. M.A. Qureshi, Advocate‑on‑Record (absent) for Respondents. Date of hearing: 13th March, 1985. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment, dated 4‑12‑1984 of the Lahore High Court; whereby a second appeal arising out of a pre‑emption decree passed against the petitioners vendees in favour of the respondents preemptors, was dismissed. Learned counsel for the petitioner has urged only one point, which is based on Issue No.5‑‑ "whether the plaintiffs waived their right of pre‑emption". Although this issue was pressed before the trial Court and it was decided against the petitioners it was not pressed before the First Appellate Court. However, the learned High Court in second appeal allowed the point to be urged but after careful examination of the evidence led by the parties gave a finding against the petitioners. Accordingly leave to appeal has been sought. Learned counsel has contended that the vendor had before the sale of the suit‑land to the petitioners vendees, posted an advertisement in the newspaper offering the land for sale to all including the then intending preemptors and that direct offer was also made to the respondents‑plaintiffs which was witnessed by persons who appeared at the trial and deposed about it. Learned counsel also pointed out the evidence led to support the plea that the same purpose was sought to be achieved by beat of drum in the locality where the sale took place and that the respondent‑plaintiff was aware of all the above offers and efforts. After hearing the learned counsel at some length in support. of this petition, we do not find any force in it. Firstly because there is a finding of fact by the High Court against the petitioners regarding all the three items of evidence mentioned above which are pressed in service in support of the plea of waiver. When asked even at this late stage in this Court to produce the advertisement in the newspaper if any, the learned counsel frankly stated that despite his best efforts none has been discovered. Accordingly the point sought to be agitated in support of this petition stands concluded. The findings of fact do not suffer from any infirmity. Secondly, learned counsel remained unable to show that mere knowledge of an intending pre‑emptor about the sale, which is subsequently made the subject‑matter of a pre‑emptor suit, would constitute waiver. In the above view of the matter there is not force in this petition. Leave to appeal is accordingly refused. M.I. Leave refused