1990 PLP 144﷓﷓ (CLC)

Mian Sher Alam for Respondents. Date of hearing: 17th October, 1989. Through this Single Judgment I propose to dispose of the two R.S.As. No.428 of 1967 and 667 of 1967 filed by Zahoor Hussain appellant against the judgment and decree dated 28‑2‑1967 passed by learned Additional District Judge, Gujrat.

2. The facts briefly are that on 9‑2‑1966 Zahoor Hussain appellant filed a suit for possession by pre‑emption of agricultural land measuring 47 kanals and 12 marlas situated in village. Gurdananwala, Teh‑11 Kharian, District Gujrat against Muhamamd Ismail and 3 others, the respondents, in the Court of Civil Judge Gujrat. The suit was filed on the basis of superior right of being collateral to the vendor and co‑sharer in the Khata. The superior right of the appellant respondent was not denied. In the written statement, the respondents stated that the land was purchased for Rs.30,000 and not for Rs.17,650 as averred in the plaint. The respondents also stated that the appellant had waived the right of pre‑emption. The trial Court framed following issues:‑ ISSUES: (1) Whether the value of the suit for purposes of court‑fee and jurisdiction is correct? OP. (2) Whether the sum of Rs.30,000 was actually paid or fixed in good faith? OPD. (3) Whether the plaintiff has waived his pre‑emptive right? OPD. (4) Market value? O. Parties. (5) Relief. The parties led evidence. The trial Court found issues Nos.l, 2 and 3 against the defendants/respondents. On issue No.4, the trial Court concluded that the market value of the suit land was Rs.23,

009. So the trial Court, in view of its findings on the issues, decreed the suit of the appellant subject to the payment of Rs.23,009 on 9‑2‑1966. Feeling aggrieved with the findings of the trial Court on issue No.4, the plaintiff/appellant filed appeal. The respondents/defendants also filed appeal challenging the findings of the trial Court on issues Nos.2, 3 and

4. Both the appeals were entrusted to learned Additional District Judge, Gujrat. The learned Additional District Judge disposed of both the appeals through single judgment on 28‑2‑1967 and as a result of his findings on issue No.3 of waiver, accepted the appeal filed by the respondents and dismissed the suit of the appellant/plaintiff. Resultantly, the appeal filed by the appellant against the judgment and decree of the trial Court stood dismissed, hence these two appeals. It may be noted here that the learned Additional District Judge has not given his findings on the other issues.

3. Learned counsel for the appellant contended that the well‑reasoned findings of the trial Court on issue No.3 has been reversed by the appellate Court without legal and factual justification; that the learned Appellate Court has not considered the question of waiver of right of pre‑emption in accordance with the guiding principles laid down by the superior Courts, inasmuch as, mere presence of the pre‑emptor at the time of bargain, does not amount to waiver of the right of pre‑emption. Reliance has been placed on Waryam v. Waryam and others 1986 MLD 2431, Sarwar Khan v. Mst. Khudeja 1987 MLD 2359, Nazar Muhammad v. Pholla and others 1987 MLD 33, Muhammad Hayat v. Dost Muhammad 1985 MLD 936 Noor Muhammad v. Nazir 1985 CLC 480, and Muhammad Rafiq and others v. Mst. Rehana Begum NLR 1985 Civil

348. On the other hand, the learned counsel for the respondents relied on PLD 1971 SC 730, PLD 1972 SC133, 1988 SCMR 1407. PLD 1985 Lah. 380 and PLD 1985 Kar.47 contend to since the appellant/plaintiff had actively participated in the transaction so he has relinquished the right of pre-emption by conduct.

4. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellant Issue No.3 is an issue of fact. The learned competent to Appellate Court was the final Court on facts and was competent to believe/disbelieve the evidence disbelieved/believed by the trial Court. The findings of the learned Appellate Court on this issue do not suffer, from misreading/non‑reading of the evidence. Karam Dad D.W.3 stated the aforesaid made by Karam Dad D.W.3, An examination of the aforesaid statements made by karam Dad D.W3 Fazal Hussain D.W6 shows that it is not a case of mere presence of the pre emptor at the time of bargain inasmuch as Zahoor Hussain pre‑emptor, is real brother of Fazal Hussain, vendor; that he accompanied Fazal Hussain to the house of Karam Dad D.W.3 for the sale of suit land and that he not only was present when the sale price was settled and earnest money was paid but he also accompanied the vendor and the vendee to Tehsildar for the attestation of mutation. In the peculiar circumstances of this case, I feel that on account of his clear conduct which showed that he was not at all interested for the purchase of the property, the appellant/plaintiff has waived his right of pre emption. There can be no two opinions that the waiver of right of pre‑emption may result either from express relinquishment or from conduct from which such relinquishment of right could be inferred. The findings of the learned Appellate Court on issue of waiver do not suffer from illegality or material irregularity. The case‑law cited by the learned counsel for the appellant/plaintiff do not apply to the facts and circumstance, of this case. For what has been said above, I do not see any justification, in exercise of the appellate powers of this Court, to interfere with the judgment and decree of the learned Appellate Court. So both appeals are dismissed, leaving the parties to hear their own costs‑ Appeals dismissed.