2011 PLP 1859 (MLD)

MUHAMMAD AMEER BHATTI, J.

Through this second appeal, the appellants have impugned the judgment and decree of the learned Lower Appellate Court whereby the learned Court after setting aside the judgment and decree of the learned Trial Court decreed the suit for possession through pre-emption.

2. The brief facts of the case are that respondents/plaintiffs filed a suit for possession through pre-emption against the present appellants, who purchased the land measuring 151-Kanal and 11-Marlas situated in Village Raja Jang, Tehsil and District Kasur through a registered sale deed dated 17-7-1967 from Samunda, real father of the pre-emptor/ Bahadar for consideration of Rs.52,800 and suit was filed on 16-7-1968 within prescribed period of one year.

3. The suit was contested by the present appellants/defendants by filing their written statement in which raised preliminary objections and also controverted the factual position. Issues were framed and parties led their evidence according to the issues.

4. The learned Trial Court vide its judgment and decree dated 29-6-1978 decreed the suit of respondents. However, on appeal filed by the present appellant, the learned Lower Appellate Court vide its judgment and decree dated 14-10-1978, remanded the case after setting aside the Judgment and decree of the learned Trial Court only on Issue No.8-A for decision afresh after providing opportunity of hearing to the parties of the suit.

5. In the post remand proceedings, the learned Trial Court dismissed the suit vide judgment and decree dated 6-3-1984, as a result of findings on Issue No.8. It is noticeable here that the learned Appellate Court had remanded the case only for decision afresh while giving the finding on Issue No.8-A but the suit was dismissed on the basis of the findings on Issue No.8 against the spirit of the remand order. However, in appeal, this aspect perhaps has not been considered and appeal was dismissed on 13-1-1987.

6. Feeling aggrieved, present respondent/pre-emptor filed R.S.A. No.50 of 1987 in the Lahore High Court, Lahore which was accepted on 27-5-1989 and case was remanded to the learned Trial Court with the direction to record specific findings with regard to the prayer for production of evidence on all issues other than Issue No.8-A. The learned Trial Court, however, dismissed the suit on 12-9-1989.

7. The pre-emptor/respondent went in appeal which was dismissed for non-prosecution on 7-12-1991 and not restored even on an application. This order was passed on 11-11-1992. F.A.O. No.53 of 1993 was filed in this Court which was allowed vide order dated 14-4-1998. Resultantly, the appeal was restored and case was remanded to the learned Additional District Judge for decision on merits.

8. In the post remand proceedings, the learned Additional District, Judge again dismissed the appeal vide impugned judgment and decree dated 12-12-1998 on a simple ground that the plaint could not proceed as the appellant did not qualify in accordance with the provision of section 35 of Punjab Pre-emption Act, 1991. Against this judgment, R.S.A. No.21 of 1999 was filed and same was accepted on 10-6-1999 keeping in view the law laid down by the Hon'ble Supreme Court of Pakistan reported as PLD 1986 SC

360. Consequently, the appeal was directed to be pending before the learned First Appellate Court, which will be decided by the First Appellate Court in accordance with law and on merits, according to the provisions under which this suit was instituted.

9. This time the learned First Appellate Court decided the appeal in favour of the pre-emptor/appellant and decreed the suit vide order dated 28-9-2000. In Para 5, it has specifically been mentioned that parties sought the decision of the appeal on the basis of this issue i.e. Issue No.8 as settled between the parties. However, the learned First Appellate Court after hearing the parties decided the Issue No.8-A, qua estoppel against the present appellants and in favour of the respondent/pre-emptor. Hence, this R.S.A.

10. The learned counsel appearing on behalf of the appellants very fairly accepted the observation of the learned First Appellate Court made in Para No.5 of the impugned judgment, where it was held that the parties have settled all other issues and only sought decision of the suit on the basis of Issue No.8 estoppel and keeping in view the undertaking given by the parties before the learned First Appellate Court as depicted from the judgment impugned, he will confine himself to the extent of Issue No.8, estoppel.

11. Learned counsel for the appellant contends that whole evidence led by the defendant clearly proved that the respondent was present at the time of sale, registration of deed and he surrendered his right to purchase land in dispute, hence he was estopped by his conduct to file the suit but the evidence of the appellants has been misread and misconstrued by ignoring the most relevant evidence of the appellants. As such the learned first Appellate Court committed jurisdictional defect, which is not sustainable in the eye of law.

12. Learned counsel has drawn my attention to the said evidence to demonstrate it and read different parts of the evidence produced by them in the shape of DWs and by referring to this evidence, built his arguments that the pre-emptor being son of the vendor was present at the time of bargain, registration of sale-deed and on each and every step of this transaction and he has demonstrably shown his inability to purchase this disputed land, hence he had no right to file this suit. Further referring to the evidence contends that the respondent is residing with the vendor in the same house, so he was aware of the transaction and actively participated in the bargain, hence lost his right to recover the possession through pre-emption. He has relied on the judgments 1984 CLC 403, 1985 CLC 1974, PLJ 1968 BJ 5, 1985 MLD 1535, "Sections 4, 15 & 21

Evidence Act (I of 1872), S.115

Right of pre-emption

waiver

Active participation of pre-emptor in negotiations for deal and in transaction of sale itself proved through un-rebutted evidence-Pre-emptor, held, would be deemed to have waived his right of pre-emption in circumstances." PLD 1972 SC 133, "Punjab Pre-emption Act (I of 1913), S.15

Suit for pre-emption

Private auction of property

Pre-emptor present at and participating unsuccessfully in private auction

Participation in auction by itself not sufficient to amount to waiver of right of pre-emption

Evidence Act (I of 1872), S.115." 1980 CLC 2063 "S. 19 and Evidence Act (I of 1813), S.115

Pre-emption suit

estoppel by waiver

Prospective pre-emptor signing sale deed as an attesting witness and contents read over to him

Pre-emptor denying his attestation only to avoid consequences of knowledge thereof

Such person, held, deemed to have waived his right and thus estopped to file a suit for pre-emption."

13. Further contends that findings in Trial Courts judgment have not been legally reversed, as reasons assigned therein have not been properly met by First Appellate Court, hence liable to be set aside on this lone ground as held in PLD 1969 SC 617.

14. Learned counsel lastly argued that the Issue No.8 regarding estoppel/waiver is proved by DWs 1 to 3 and the solitary statement of plaintiff/respondent as his own witness is uncorroborated and could not be held to disprove the statements of above DWs as held in 1986 CLC 2513.

15. Conversely, the learned counsel for the respondent contends that the judgment and decree passed by the learned First Appellate Court is legal and in accordance with law and according to the evidence of the parties and while exercising the appellate jurisdiction he has neither committed any illegality or irregularity nor anything has been pointed out by the appellant here before this Court.

16. Further in support of the judgment of First Appellate Court contends that there is no solid/tangible evidence brought on record by the present appellants/defendants for the proof of the fact that plaintiff has relinquishes his right or waived his right. Reliance is placed on 1998 SCMR 473 "

S. 15

Constitution of Pakistan, Art. 185(3)

Suit for pre-emption decreed by Trial Court

High Court affirmed finding of Trial Court

Validity

Defendant challenged finding of Trial Court only on question of waiver of right of pre-emption by plaintiff

High Court for determining such issue reviewed entire evidence led by parties on question/issue of waiver and did not find any wrong with finding recorded by Courts below

Evidence produced by defendant on issue of waiver was not confidence inspiring rather such evidence was based on conjectures and surmises

Plaintiff was not shown to have derived any benefit out of his alleged assurance that he would not pre-empt sale of land in question, in favour of defendants

Court below had rightly discarded evidence of defendants on issue of waiver for cogent reasons

Leave to appeal was refused in circumstances."

17. Further contends that even if the evidence of the DWs be considered as true, even then it has not been proved that the plaintiff has waived his right of pre-emption. Mere presence at the time of bargain as stated by the DWs does make the case of waiver or relinquishment. Reliance is placed on PLD 1972 SC 133 wherein it has been held that mere participation in the auction for the sale of the property or failure to outbid the purchaser cannot be regarded as waiver of right of pre-emption. Learned counsel while relying on 1996 3C "S.15

Constitution of Pakistan (1973), Art.185

Qanun-e-Shahadat (10 of 1984), Art.114

Suit for pre-emption

Estoppel against pre-emptor

Presence of plaintiff at the time when bargain was struck was not enough to draw inference of acquiescence in sale

Trial Court as also Appellate Court had correctly drawn inference on the basis of evidence on record that by mere presence of plaintiff at the time of bargain no estoppel/waiver was constituted

High Court, therefore, erred in upsetting concurrent findings of facts by misreading of evidence.

18. Learned counsel for the respondent/plaintiff lastly contended that there was no evidence that after the bargain any offer at definite price has been made to pre-emptor or pre-emptor has made any offer not to claim his right of pre-emption. Reliance is placed on PLD 199 Lahore 1290.

19. Arguments heard and record perused with the assistance of the learned counsel for the parties.

20. The main emphasis of the learned counsel for the appellant is that the respondent/plaintiff was present at the time of bargain as well as the registration of sale deed but he has failed to produce any tangible evidence through which he could succeed to prove this fact. Being purely a question of fact, it required convincing testimony with strong corroborative evidence. However, he has only produced the oral evidence which I have minutely gone through but nothing could be found out from the evidence of D.Ws that the petitioner had refused to accept any offer made by the appellant to the respondent/pre-emptor - even after completion of the sale. The witnesses as well as the appellant who appeared in support of the case of appellant tried to prove this fact that the respondent/pre-emptor was present at the time of bargain as well as the registration of the sale instrument. Although, from the evidence of the appellant, it cannot be deduced that the respondent was present at the time of bargain or the time of registration but even if it is presumed that the pre-emptor was present at the time of bargain and the registration of the document, even then from his presence, it cannot be derived that he waived his right of pre-emption according to the law laid down by the Hon'ble supreme Court of Pakistan as well as this Court. It is settled law that overt and positive acts are necessary for the proof of participation in the sale transaction but this element could not be proved through the oral evidence. Even through oral evidence, whatever the appellant has succeeded to prove, is the only presence. If the testimony of the witnesses of the appellant is to be presumed to be correct, even then there is only presumption that the other brother was there, so, the pre-emptor whatever their case is father was selling the property. Since a particular question in cross-examination was put to the witnesses about the presence of the respondent/plaintiff but that was based on presumption as the other brother of the respondent was participating in the execution of document and registration of document, so, he was also present there. At the most, it can be presumed that the plaintiff/respondent was present at the time of execution of documents but there is no positive evidence about the active participation in sale transaction and positive relinquishment of right of pre-emption. However, even if it is assumed that pre-emptor/respondent was present at the time of transaction, it did not by itself constitute waiver. Witnesses appearing as D.Ws tried to establish that the bargain was struck through the plaintiff/pre-emptor but such solitary sentence could not be considered sufficient to hold that someone had participated in the transaction in such a manner to give indication of relinquishment of right of pre-emption. For that matter, some positive and overt acts by pre-emptor towards completion of sale transaction ought to be brought on record. So far as the presence of the petitioner is concerned, the law is clear as mentioned above that the mere presence at the time of bargain does not constitute relinquishment of the right of pre-emption.

21. The finding of the learned Lower Appellate Court impugned herein cannot be set at naught by this Court unless it is established that the same is perverse or erroneous in view of the dicta laid down by the apex Court in the cases referenced ibid.

22. Consequently, I find no substance in this appeal which is hereby dismissed with no order as to costs. M.H./J-28/L Second Appeal dismissed.