2001 PLP 3315 (YLR)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been preferred against the judgment and decree of the High Court, dated 3‑4‑1998, whereby the appeal filed by the appellant, herein, was dismissed and the judgments and decrees of the Courts below were maintained.

2. The facts giving rise to the present appeal are that the respondents brought a pre emption suit in the Court of Sub‑Judge, Kotli, on 2‑4‑1987 regarding the land comprising Survey No.584, measuring 8 Kanals, 6 Maras, situate in village Barlai, Tehsil and District Kotli. The defendants -appellants accepted the preferential right of pre‑emption of the respondents but maintained that they had lost their right by waiver as they had consented of the sale in question. The trial Court decreed the suit. The appeals filed by the appellants, herein, to the District Judge and the High Court were also dismissed.

3. It has been contended by Ch. Riaz Alam, Advocate, the learned counsel for the appellants, that the Courts below have misread the evidence on the question of waiver. According to the learned counsel for the appellants, the witnesses for the defendants‑appellants, namely, Hafeez, Muhammad Afsar and Zafar Hayat, amply prove that the plaintiffs‑respondents were present at the time of sale and, thus, they lost their right of prior purchase through their conduct. The learned counsel has maintained that the respondents are the sons of the vendor and they were living in the same house alongwith their father. He has further contended that when the consideration of the land changed hands between the vendor and vendees, they were present and did not claim to exercise their right of prior purchase with regard to the land in question. The learned counsel has argued that the Courts below have given undue importance to the so‑called contradictions in the statements of the witnesses for the appellants; the contradictions are of minor nature and do not render their statements doubtful.

4. Mr. Liaquat Ali Khan, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that all the Courts below have concurrently found that the witnesses examined on behalf of the defendants‑appellants to prove the waiver were not only related to the defendants‑appellants but they also indulged in contradictions. Thus, the learned counsel maintained, the unanimous findings of all the Courts below cannot be disturbed.

5. We have given due consideration to the matter. Irrespective of the fact that the aforesaid witnesses on the question of waiver were not relied upon by the Courts below, merely their alleged presence at the time of bargain of the land in question would not debar them from exercising the right of pre emption. There must be some positive overt act, such as active participation in the negotiations of the bargain of the land to show positively that they lost their preferential right by their conduct. Therefore, finding no force in this appeal, it is hereby dismissed with costs. H.B.T./220/SC(AJ&K) Appeal dismissed.