1989 PLP 2961 (MLD)

Syed Sajjad Raza Jaffri for Appellant. Fida Hussain for Respondents. Date of hearing: 22nd April, 1989. The main burden of argument presented for the appellants by his learned counsel Syed Sajjad Raza Jaffri, Advocate, was that the suit of the respondents for possession of land through pre-emption was bad on account of partial pre-emption and that it was proved on record that the respondents had waived their right to purchase the land,

2. In support of his first mentioned argument learned counsel drew my attention to the sale-decd in which it was stated that a tube-well as also Chakki was also purchased by the appellants but in the plaint no mention was separately made about this tube-well and Chakki, therefore, the suit was hit by the principle of partial pre-emption.

3. I am afraid the argument is plainly unsound. In the plaint the respondents clearly stated that they were seeking to pre-empt the entire land measuring 106 Kanals 13 Marlas sold through the said sale-deed. In the document of sale it has been recited that this land alongwith tube-well and Chakki was sold at the lump sum price given in the sale-decd. The respondents admittedly have deposited the entire sale price covered by the sale-decd for the entire land which included tube-well and Chakki as per its terms. It was not the case of learned counsel for the appellants or even so mentioned in the sale-deed that tube-wall and Chakki was sold for an ascertained price separately. The sale deed if read as a whole is clearly indicative of the fact that these two items were conveyed as part of the land which was being sold for the price mentioned therein, as such, they were treated as land for the purposes of sale. No case of partial pre-emption therefore, is made out merely because separate mention of these two items was not made in the plaint though the entire land with reference to the sale-decd was sought to be pre-empted and as observed above Chakki and tube-well were treated as land and not separate entity.

4. As regards tile second argument learned counsel maintained that the evidence was led that the respondent was present at the time when the bargain was settled, therefore, he shall be deemed to have waived his right to purchase the land. This argument too is fallacious. According to rule laid down by the superior Courts in the reported judgments waiver of pre-emption right could only be proved if' it was established through clear evidence that the pre-emptor was offered the land for purchase at a specific sum as price and he declined to purchase. Therefore, mere alleged presence of the pre-emptor at the time of settlement of' bargain was rightly not taken into consideration to hold that it I constituted waiver on his part, of his right of pre-emption. In this view of the matter, the concurrent findings of the, two Courts below have not been shown to have suffered from misreading, mis-construction or non-reading of evidence.

5. Learned counsel for the appellants lastly argued that the application made by the appellants under Order 41, Rule 27, C.P.C. before the learned lower appellate Court was in fact an application for seeking amendment in the written statement so as to incorporate a pica of defence that the appellants were tenants in the land, therefore, the right of pre-emption of the respondents on the ground of ownership was inferior to them.

6. I have gone through the said application from which it is manifest that no prayer was made for amendment of the written statement. Even if the said application is treated to be an application for seeking amendment in the written statement, the same has been dismissed on good reasons viz. the appellants had taken a plea in the written statement that they were mortgagees over the land in dispute and the pica that they were tenants could not be allowed to be raised. The order passed by tile learned lower appellate Court do not suffer from any illegality.

7. The judgments of the two Courts below arc concluded by concurrent Findings of facts which do not suffer from any illegality calling for interference in second appeal. The appeal fails which is hereby dismissed without any order as to costs. H.B.T./M-1407/L Appeal dismissed.