P L D 1984 Peshawar 78 (PLP)

(2) Which of the rival pre‑emptor has got a superior right of pre emption ? (3) Whether the plaintiff has a cause of action ? (4) Whether the plaintiff has waived his right to pre‑empt, if any? (5) Whether the suit is within time? (6) Whether the suit is not competent in its present form? (7) Whether the suit cannot proceed under M. L. R. 115? (8) Whether the suit is properly valued far tile purposes of court‑fee and jurisdiction ? (9) Whether the civil Court has no jurisdiction to entertain the suit? (10) Relief.

2. After recording the evidence, as produced by the parties, the learned. Senior Civil Judge held in issue No. 2 that Sardar Abdul Haye Khan, rival pre‑emptor, was a co‑sharer in, while Muhammad Ashiq, plaintiff, was an owner of land contiguous to, the suit land. The learned Senior Civil Judge also decided in issue No. 4 that the rival pre‑emptor, Sardar Abdul Haye Khan, having taken active part in the completion of the sale transaction, had waived his right of pre‑emption under section 21 of the N.‑W. F. P. Pre‑emption Act. . The sale price, mentioned in the sale mutation, was not controverted by both the pre‑emptors, hence the same was fixed as price paid and market value of the suit land by the learned trial Judge; who while dismissing the suit of the rival pre‑emptor, Sardar Abdul Haye Khan, granted a decree, vide his judgment dated 17‑7‑1976, for possession by pre‑emption of the suit land in favour of the plaintiff Muhammad Ashiq on payment of Rs. 5,320, wbicn amount had already been deposited by the plaintiff in the Court. Feeling aggrieved, Sardar Abdul. Haye Khan preferred an appeal before the learned District Judge, D.

1. Khan, who reversed the findings of the learned trial Judge on issue No. 4 regarding waiver by the appellant and decided that issue in his favour and setting aside the decree of the learned trial Judge, granted a decree in favour of the appellant, Sardar Abdul Haye Khan, vide his judgment dated 16‑12‑1978. Muhammad Ashiq, plaintiff, feeling aggrieved this time, came upto this Court with the present revision petition.

3. It is admitted that the present petitioner claims his superior pre‑emptive right on the basis of contiguity while Sardar Abdul Haye Khan, respondent No. 1 herein, is a co‑sharer in the suit land. The price paid was also not controverted by the petitioner herein. The only question is whether Sardar Abdul Haye Khan had waived his right of pre‑emption. In this connection, the admitted facts are that Ust. Shakiran Bibi, the original owner of the suit land, is mother and Mst. Bilqis Bibi, the vendee, is wife, of Sardar Abdul Haye Khan. It has also come in evidence that Sardar Abdul Haye Khan had appeared before the, Revenue Officer wherein he had admitted the factum of sale of the suit land by his mother in favour of his wife and bad also received the sale price, on behalf of his mother. It has also come in evidence that Sardar Abdul Haye Khan, his mother and his wife lived jointly in one house. He has contended that before the mother of transaction of sale in favour of his wife, he had offered Rs. 4,000 to his mother as sale price of the suit land but she refused to accept the same and instead sold the suit land to his wife for Rs. 5,

320. However, his mother did not enter the witness‑box to confirm the offer made by her sots.

4. It has been alleged by Sardar Abdul Haye Khan that he was acting as an Agent of his mother in connection with the completion of sale in favour of his wife and that he had not waived his personal right to pre‑empt the suit land.

5. I have given anxious thought to the peculiar circumstances of this case. The land is sold by the mother‑in‑law to her daughter‑in‑law through, her son. All the three reside in the same house. The transaction is completed through the son. The factum of sale in favour of the daughter‑in‑law is also admitted on behalf of the mother‑in‑law by the son of the latter before the Revenue Officer and the sale amount is also received by him. All these circumstances will show that consultations must have taken place amongst all the aforesaid three persons and the suit land must have been sold to Mst. Bilqis Bibi with the consent of Sardar Abdul Haye Khan who happens to be her husband. It is unbelievable that the husband may not know about the sale by his mother in favour of his wife. On the contrary, it can easily be gathered from the circumstances that actually the son must have asked the mother to transfer the land in favour of his wife and not in his favour.

6. The learned District Judge has relied upon the commentary on sec tion 115 of the Evidence Act from the book by Chief Justice, retired, M. Muneer, wherein the learned Author has differentiated between dual capacities of a person acting as an agent of somebody and also acting in his personal capacity. No doubt, a person who acts in a representative capacity, does not generally lose his personal capacity but that principle would not be applicable here due to the aforesaid peculiar circumstances of this case. Here Sardar Abdul Haye Khan was not only living in the same house but is also the closest relation of the vendor and the vendee and the sale transac tion must have taken place between the former two with his express consent and that is why he appeared before the Revenue Officer for attestation of the sale mutation and receipt of sale price on his behalf. It is not a. simple case of representative capacity regarding a stranger. I am of the considered opinion that there cannot be a more appropriate example of positive act of waiver as is exhibited in the present case. Moreover, he filed the pre‑emption suit only when the petitioner had already pre‑empted the sale transaction.

7. The circumstances of waiver in pre‑emption cases has been a subject -matter in many cases before the Superior Courts and the general consensus is that each case depends upon its own peculiar circumstances. In the case of Mian Shah Nawaz Khan v. Allah Ditta etc. (1982 C L C 1348), the pre‑emptor was present with his father, who was vendor, at the time of transaction of sale and it was held by my learned brother, Manzoor Hussain, Judge Lahore High Court. that, the son had waived his right of pre‑emption. It shall thus be seen that more presence of the pre‑emptor at the time of sale was considered sufficient to operate as a positive act of waiver on the part of the pre‑emptor. On the other band, the learned counsel for respondent No. 1 has relied upon the case of Muhammad Saleh v. Muhammad Shafi (1982 S C M R 35), wherein it was held that "to establish `waiver' by conduct it must be shown that person entitled to a right had knowledge of breach thereof and that he had acquiesced or failed to act notwithstanding that knowledge mere failure to take action due to ignorance of breach of his right cannot be said to give 'rise to any waiver by conduct mere inaction or allowing an opportunity to pass by does not necessarily amount to waiver‑gratuitous indulgence shown by one of parties‑does not constitute estoppel or waiver‑omission to enforce one's legal right strictly‑‑cannot give rise to an inference of right having been abandoned".

8. However, the aforesaid Supreme Court authority, with utmost respect, would not apply to the present circumstances of the case where the B rival pre‑emptor had definite knowledge of the sale and had actually acquiesced in it. The learned counsel for Sardar Abdul Haye Khan has further relied upon the case of Muhammad Ishaque and 3 others v. Dilawar and 4 others (1980 C L C 1036) in support of his contention that his client was not estopped from pre‑empting the sale transaction. In this case, it was held that very strong and cogent evidence was needed for non‑suiting a pre‑emptor on the ground of estoppel and that plea of estoppel was not substantiated due to discrepancies in evidence of the appellant. However, this case is also not applicable to the case in hand for the simple reason that there is very strong evidence and no discrepancy to prove the active participation of Sardar Abdul Haye Khan in the completion of sale transaction in favour of his wife. The learned C trial Judge had given very sound reasons for arriving at the conclusion that Sardar Abdul Hay e Khan had waived his right of pre‑emption as envisaged in section 21 of the N.‑W. F. P. Pre‑emption Act which could not be success fully assailed in appeal. The learned District Judge failed to appreciate the correct legal and factual value of the evidence produced before the learned trial Court with regard to the factum of waiver by the appellant before him. As such, he not only misread the evidence but also acted with material irregularity.

9. The net result of the above discussion is that I would accept this revision petition, set aside the impugned judgment of the learned District Judge and restore the judgment and decree of the learned Senior Civil Judge with no order as to costs. M.Y.H. Petition accepted.