P L D 2007 Supreme Court 26 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.

Muhammad Tufail, Muhammad Hassan, Jehan Khan and Ali Hassan, appellants purchased 150 Kanals 10 Marlas of land in Mauza Chandoor Tehsil Depalpur District Okara vide Mutation No. 112 attested on 30-10-1972. Through another transaction they purchased 117 Kanals, 18 Marlas of land in the same Mauza vide Mutation No. 113 attested on 24-1-1973. The amount of consideration in the first sale was Rs.76,000 while in the second sale it was Rs.59,000.

2. Ghaus Muhammad Khan, Abbas Ali Khan, Ghulam Dastgir Khan and Ghulam Mohi-uddin Khan filed two separate suits for possession through pre-emption against the aforesaid transactions, on the ground of being co-sharers as well as owners in the estate which rights did not vest in the vendees.

3. Learned Senior Civil Judge Okara vide his judgment, dated 17-3-1983 granted decrees in both the suits on payment of the respective amounts, holding that the pre-emptors had a superior right of pre-emption. The learned District Judge Okara vide his judgment, dated 27-3-1985 accepted the appeals and non-suited the pre-emptors holding that though they had superior right of pre-emption yet Ghaus Muhammad Khan pre-emptor had waived such right.

4. The pre-emptors went in regular second appeals before the High Court where a learned Judge in Chambers vide judgment, dated 21-11-2000 accepted the appeals, set aside the judgments of the learned first appellate Court and restored the decrees granted by the learned trial Court, holding that the only point of wavier raised by the vendees against Ghaus Muhammad Khan, pre-emptor was not proved through evidence. Muhammad Tufail etcetera, the vendees have filed these two appeals, which are taken up together.

5. The main stance taken by learned counsel for the appellant/vendees was that the question of waiver is a question of fact which was determined against the pre-emptor Ghaus Muhammad Khan by the learned District Judge, being the last Court of facts, and hence his appreciation of evidence should not have been interfered with by the learned High Court exercising jurisdiction under sections 100-101, C.P.C. That the learned High Court should have confined itself only to the questions of law as described by section 100, C.P.C. and should not have resorted to deep appreciation of evidence.

6. Learned counsel for the respondents while agreeing that waiver is a question of fact, controverted the point raised, saying, that the two Courts below were at variance regarding a question of fact and the same could not have been decided in the second appeal unless the learned High Court resorted to detailed appreciation of evidence, more particularly, when the learned District Judge had fallen into serious errors of misreading and non-reading of evidence.

7. A larger Bench of this Court in Allah Din v. Habib (PLD 1982 SC 645) has held that in case of conflicting judgments, the Court of second appeal ought to have made a comparative assessment of reasons undertaken by the two Courts flowing from the evidence on record. A similar view was taken by a Full Bench of this Court in Alloo v. Sher Khan (PLD 1985 SC 382). In this case the trial Court and the appellate Court were at variance with regard to a question of fact while the High Court without comparing the reasoning adopted by the Courts below, agreed with the first appellate Court. This Court held the view that the finding by the lower appellate Court would be immune from interference in second appeal only if it was found to be substantiated by evidence on record and was supported by logical reasons. This exercise cannot be completed unless the High Court makes a comparison of the reasoning of two Courts, which again, is not possible unless evidence is appreciated. While following the principle of law maintained by this Court, we hold that the learned High Court is justified in appreciating the evidence in second appeal in order to determine as to which of the two decisions of the Courts below is in accord with the evidence on record.

8. Coming to the evidence on record, we have minutely gone through the same with the assistance of learned counsel on either side. The witnesses of vendees with regard to the assertion of waiver by Ghaus Muhammad Khan, have not gone beyond a bald allegation through a repeated single sentence that the bargains were struck through the plaintiffs. The vernacular reproduction being "ﺳﻮﺪﺍﻤﺪﻋﻳﺎﻦﻧﻲﻜﺮﻭﺍﻳﺎﺗﻬﺎ " and "ﺳﻮﺪﺍﻤﺗﺪﻋﻮﻴﻪﻤﺪﻋﻰﻏﻭﺚﻤﺤﻤﺪﻧﻯﻜﺮﻭﺍﻴﺎﺗﻬﺎ" such solitary sentence cannot at all be considered sufficient to hold that some one had participated in a transaction in such a manner that it gave strong indication of relinquishment of right of pre-emption. Some positive and overt acts by the pre-emptor towards the completion of transaction must be brought on record in material particulars. Participation in a transaction consists of numerous positive acts like playing an intermediary between the vendor and the vendee; like contacting the vendor to persuade him to sell the land; like negotiating between the parties regarding the amount of transaction, so on and so forth. Not a single incident of such a nature was ever brought on record and hence the learned District Judge was not competent to hold such bald allegations as sufficient evidence towards the act of waiver. The learned High Court was fully justified in holding, by appreciation of evidence, that the learned first appellate Court had fallen into an error of misreading of evidence rather, it was a case where a large set of actions varying with different situations have been assumed by accepting as correct all the consequences of the aforesaid single and bald assertions.

9. Statement of Patwari Halqa is considered another piece of evidence qua waiver, when he stated in the witness box that the report in his daily diary qua the transaction was got entered by Muhammad Tufail and Ali Hassan etcetera along with Ghaus Muhammad, the pre-emptor. When confronted with the Roznamcha he admitted that he had not entered the name of any one in the daily diary except the lamberdar. His evidence regarding Ghaus Muhammad is, therefore, not worthy of credence. Even if it is proved that Ghaus Muhammad or, for that matter, any of the pre-emptors was present at the time of transaction, it does not by itself constitute waiver. Mere presence of somebody during transaction is not at all inferable of positive participation in such transaction and positive relinquishment of the right of pre-emption. In the circumstances, the learned High Court was justified in setting aside the judgment of the learned first appellate Court.

10. Last but not the least, even if Ghaus Muhammad is labelled with the act of waiver, he is most likely to loose his individual right. It would never damage the right of Abbas Ali Khan, Ghulam Dastgir Khan and Ghulam Mohi-ud-din Khan, co-pre-emptors. They will succeed in pre-empting the entire land to the exclusion of Ghaus Muhammad. It is quite interesting to note that they have jointly filed both the appeals before the High Court and are prepared to share the property inter se. Under no circumstances, the three co-pre-emptors could be non-suited for the act of waiver of Ghaus Muhammad, which too, was never proved at all.

11. Consequent upon what has been discussed above, we are of the view that the learned High Court, in the circumstances, was justified, in interfering with the judgment of the first appellate Court. There being no force in the appeals, both are hereby dismissed. S.M.B./M-156/S Appeals dismissed.