1989 PLP 3302 (MLD)

Yusuf Ali Khan for Petitioner. Nemo for Respondent No.1. Irshad Ullah Chatha for the Respondents Nos. 2 to

4. This civil revision arises out of a suit for possession through pre-emption filed by Muhammad Hussain and others (respondents Nos. 2 to 4 herein) against Ibrahim and Abdul Ghahi petitioners, which was dismissed by the trial Court on 13th of October, 1985 but was decreed by an Additional District Judge, Sheikhupura on 28th of May, 1986 on an appeal filed by the respondents.

2. The dispute relates to an area of 45 Kanals 14 Marlas of land situated in village Latheypur Tehsil Ferozewala District Sheikhupura which had been purchased by the petitioners from its owner Nasib-ud-Din son of Gainda through a registered deed of sale dated 19th of March, 1983 for the consideration of Rs.90,00o. In the suit of pre-emption as against the petitioners as being the real brothers of the vendor. The suit was resisted by the petitioners inter alia on the ground that it was not properly valued for the purposes of court-fee and jurisdiction and also the respondents were estopped by their own act and conduct for filing the suit as they had waived their rights of pre-emption.

3. The learned trial Court after framing the necessary issues and recording the evidence of the parties, dismissed the suit in view of its fording on issue No-4 A relating to waiver. It was held that the land had been offered to the plaintiffs pre-emptors prior to the sale in favour of the petitioner-defendants but they have refused to purchase it and had actively participated in the bargain and were therefore, estopped from filing the suit.

4. Aggrieved by this decision, the petitioners filed an appeal which was accepted by the Court of Mr. Yaqub Ali Khan, Additional District Judge, Sheikhupura. The learned Additional Judge reversed the finding of the trial Court on issue No.4 and decreed the suit m favour of the plaintiffs. Hence this revision petition.

5. The only question involved in this revision petition is as to whether or not the respondents-plaintiffs were estopped from filing the suit. The trial Court after considering the evidence came to the conclusion that this issue stood proved and dismissed the suit. The learned District Judge, however, took another view of the evidence and reversed this finding. Since the judgments of the two Courts below are at variance, I have respectfully following the law declared by the Supreme Court in Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617, examined the two judgments for their comparative merits and also perused the evidence on the record. After having done so the conclusion at which I have arrived is that the judgment of the lower appellate Court is not sustainable. The most important piece of evidence relied upon by the trial Court was the statement of Nasib-ud-Din, vendor and real brother of pre-emptors who as D.W.4 stated that the land had been offered to pre-emptors before the sale in favour of the petitioners in which the pre-emptors had actively participated. The learned Additional District Judge brushed aside this statement on a wholly untenable ground that the price at which the land was offered to the respondents had not been mentioned by Nasib-ud-Din in his statement. This approach of the Additional District Judge, is erroneous inasmuch as it was never the case of the respondents that they were willing to purchase the land at a lesser price. In these circumstances it was not necessary for Nasib-ud-Din to have stated the price at which he was willing to sell the land. In any case such an information should have A been elicited in the cross-examination by the respondents which they failed to do. The Additional District Judge also fell in error m not considering that according to the statement of Nasib-ud-Din that he had offered the land to his brothers i.e. the respondents at a price which was less Rs.6,000/7,000 than the market value. In these circumstances, the failure to specify particular amount as price, was not significant and could not furnish a ground for ignoring the effect of statement off Nasib-ud-thin vendor especially when the trial Court had relied upon it. Similarly, the other Evidence relied upon by the trial Court for taking a contrary view was excluded from consideration by the Additional District Judge but while doing so the reasons which prevailed with the trial Court for taking the view which it did were not noticed by him. To me it appears that the Additional District Judge had failed to examine the case in its true perspective on an erroneous view of the matter that in absence of mention of specific price or refusal to purchase could not constitute waiver. Such an inference was only possible if the case of the respondents had been that they refused the offer because the higher side. In any case this controversy was not relevant to the other aspect of the matter viz. that the respondents had actively participated in the bargain which was not duly attended to by the lower appellate Court.

6. The fact that Nasib-ud-Din vendor is the real brother of the pre-emptors, stands admitted. In his statement as D.W.4, the plaintiffs in the first instance stated that the relations between the brothers inter se were cordial. He however, later on tried to wriggle out of this admission by stating that the relations had since deteriorated. He explained that this deterioration had taken place in the year 1947. This explanation is hardly worth any consideration for it runs counter to the earlier admission that the plaintiffs-respondents are the residents of the same place where the land in dispute is situated. In these circumstances, it could be inferred, as was done by the trial Court that respondents were fully aware of the sale, but had not intentionally come forward to purchase it. The law laid down by the Supreme Court in Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 becomes fully applicable. The Additional District Judge, did not advert to this aspect of the case. The fact that the petitioners respondents were fully aware of the sale and an offer had been made by the vendor to them also stands established by the statements of D.W.5. Muhammad Hanif and D.W.6 Faiz ` Muhammad. It was held by the Supreme Court in Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133 that if a conduct on the part of the pre-emptor inconsistent with his assertion to purchase the land subsequently is proved the suit is liable to be dismissed on the ground of waiver and estopped.

7. The learned counsel for the respondents has placed reliance on Maulvi Muhammad Mukhtar and 9 others v. Licensing Officer, Municipal Committee Sangla Hill and another PLD 1983 LA. 174, Anwar Baig and another v. Mst. Naziran Bibi and 8 others 1987 CLC 1855, Sawan and others v. Majeedullah 1987 CLC 815 and Ghulam Muhammad and another v. Muhammad Younis 1986 CLC 500 to contend that the waiver has to be established by cogent evidence and some positive act on the part of pre-emptors must be proved so as to non-suit him. As already discussed, it is established on the record that the land was firstly offered to the respondents but they refused to purchase it and instead participated in sale in favour of petitioners. Moreover, as observed by the Supreme Court in Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 conduct amounting to estoppel and waiver can also be inferred from the circumstances inter alia the close relationship between the parties.

8. The learned counsel for respondents has further contended that in the exercise of revisional jurisdiction the finding of fact recorded by the Additional District Judge cannot be set aside. It is, however to be noticed that the judgments of the two Courts below are at variance and the Additional District Judge, while reversing the finding of the trial Court failed to attend to the reasons which prevailed with the trial Court for taking a contrary view, while deciding the appeal. Moreover, as already observed the lower appellate Court did not examine the case in its true perspective and the evidence produced by the petitioners which had been relied upon by the trial Court, was excluded from consideration on a mistaken assumption that it was necessary to have mentioned the price at which the offer for purchase was made to the respondents by their brother Nasib ud-Din vendor. As explained earlier, the judgment of the Additional District Judge suffers from material irregularity and is, therefore, liable to be interfered with in the revisional jurisdiction of this Court. In view of what has been stated above this revision petition is accepted. The Judgment and decree of the Additional District Judge is set aside and that of the trial Court is restored. There is no order as to costs. M.Y.H./I-126/L Petition accepted.