1994CLC888 (PLP)

M. Nisar Mirza for Appellant. Malik Muhammad Yusuf for Respondents. The controversy in the present matter confines to the question of waiver, alleged by Muhammad Malik, vendee, as defence against the suit for possession by pre‑emption, instituted by Muhammad Shafi, plaintiff respondent.

2. Land measuring 4 Kanals 16 Marlas out of survey No.286, situate in village Fatehpur Dehari, Tehsil Kotli, was transferred through a registered sale‑deed executed on August 7,1984, by Muhammad Rashid and Muhammad Siddique, vendors, in favour of Muhammad Malik, vendee, in consideration of Rs.2,50,

000. The sale was pre‑empted on the ground of co‑sharer in the suit land. Muhammad Malik, in his defence, among others, also raised the plea of waiver. In support of the aforesaid plea, he produced Muhammad Rashid, Muhammad Siddique, vendors, Gulbahar and himself appeared as witness. Muhammad Shafi, pre‑emptor, in his defence, appeared himself as witness and repudiated the alleged waiver and denied that he was made an offer by the vendors to purchase the suit land, prior to the transaction in dispute.

3. The learned Additional Sub‑Judge, Kotli and the 'learned District Judge decreed the suit for possession by pre‑emption, in the light of their judgments and decrees passed on February 15, 1988 and August 31, 1992 respectively. This is second round of the appeal as on the previous occasion, the learned Judge of this Court remanded the case for re‑appraisal of the proposition under consideration, in the light of the observations made by the Court.

4. Mr. M. Nisar Mirza, the learned Counsel for the appellant contended that the subordinate Courts fell in error in decreeing the suit as in the case under consideration, the allegation of waiver was well‑established and both the subordinate Courts misconstrued the spirit of law applicable to the proposition. The learned Counsel relied on PLD 1969 Peshawar 118, PLD 1993 AJK 168, 1987 CLC 1855 and concluded that in presence of the evidence of Muhammad Rashid, one of the vendors, the suit should have been dismissed. Malik Muhammad Yusuf, the learned Counsel for the opposite side, controverted the aforesaid points and argued that the provisions of section 18 of the Right of Prior Purchase Act, were in para materia with the provisions of section 19 of the Punjab Pre‑emption Act and section 15, of the N.‑W.F.P. Pre‑emption Act. The learned Counsel made reference to (1991 MLD 1774).

5. The proposition relating to waiver is a mixed question of facts and law It is to be settled in the light of the facts of each case, as such no absolute rule was enforceable. The consensus is that each case is to be decided in the light of its own facts and not by virtue of a precedent as, ordinarily, like the human conduct and nature, the facts of each case may also differ.

6. The relevant provisions applicable to the proposition are postulated under section 18 of the Right of Prior Purchase Act which are in para materia to the provisions of sections 19 and 15 of the Punjab Pre‑emption Act and N.‑W.F.P. Pre‑emption Act. On account of confusion found in the authority of this Court, reported in PLD 1993 AJK 168, it is deemed expedient to reproduce the provisions:‑‑ "

18. Notice to persons having right of prior purchase.‑‑‑When any person proposes to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to‑redeem any village immovable property, of urban immovable property, in respect of which any persons have a right of prior purchase, he may give notice to all such persons of the price at which he proposes to sell such land or property, or of the amount due in respect of the mortgage, as the case may be. Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property is situate and shall be deemed sufficiently given if it is served in accordance with the provisions of Order V of the Code of Civil Procedure."

7. It is evident from these provisions that in order to defeat the pre emptor, it was enjoined upon the vendor or vendee, as the case may be, to satisfy that the pre‑emptor was informed of the transaction under consideration whereby the property in question was to be alienated to the vendee. It was essential to identify (i) the property; (ii) the pre‑emptor to whom information was given; (iii) the proposed price; and (iv) the time when such proposal or offer was made. The condition of time was essential in the spirit of law, to establish that the information was given very close to the period of transaction and not at the distant period of time. The legislature very wisely introduced this spirit in law as the prices of the property invariably changed, particularly in cities and developing towns. In the same manner, the agricultural land was transferred comparatively at higher rate, on account of development of industrial, commercial estates and residential colonies. Therefore, a big gap of time was not sufficient to fulfil the condition of notice to be provided under section 18 of the Prior Right of Purchase Act.

8. The identification of the property. under sale and its proposed price were also essential in the sense as a person to whom an offer was made, was to be deprived of the statutory right of prior purchase. Therefore, it was guaranteed and ensured that no person was deprived of statutory right by fabricated, fraudulent and fictitious evidence, as such a practice was very common.

9. It appears that in Muhammad Bashir's case (PLD 1993 Azad J&K 168), by oversight, it was held that the provisions of Section 18, Right of Prior Purchase Act, do not include the words, "the price" as was provided within the scheme of sections 19 and 15 of the Punjab and N.‑W.F.P. Pre‑emption Acts. Perhaps, due to oversight or wrong impression, the whole thesis was built‑up, to distinguish the provisions of section 18, on this score, from the provisions of sections 19 and 15 of the aforesaid perspective laws. Be that as it may, the fact remains that the provisions of section 18 are found in complete para materia with the provisions of the aforesaid laws. Therefore, no distinction could be made in the authorities of the Supreme Court and High Court of Azad Jammu and Kashmir, and the authorities of superior Courts of Pakistan.

10. It is agreeable that in order to defend a suit of pre‑emption, on the ground of waiver, it was not essential that the vendee must prove it by giving of written notice. The plea of waiver was permissible to be proved by oral evidence as well. The proposition of law enunciated in Anwar Baig's case (1987 CLC 1855) was not disputed. 10‑A. The learned Counsel for the appellant read out the evidence of Muhammad Rashid and Muhammad Siddique, Gulbahar and Muhammad Malik and endeavoured to satisfy that the evidence was cogent, convincing, as such reliable to dismiss the suit. Emphasis was made on the evidence of Muhammad Rashid, as according to the learned Counsel, the witness was not cross‑examined on the facts constituting waiver. It was argued that failure of the pre‑emptor to cross‑examine the witness on this count, tantamounts to presumption in favour of admitting the aforesaid statement of facts. The authority of Peshawar High Court recorded in Mst. Zar Jan's case (PLD 1969 Peshawar 118), was heavily relied. In order to meet the proposition, Malik Muhammad Yusuf, the learned Counsel for the opposite side, referred to the decision recorded in M/s. Kausar & Company's case (1991 MLD 1774).

11. It is noticed that the superior Courts in Pakistan have examined the proposition relating to omission to cross‑examine the witness on a particular point of fact and construed that such omission raised a presumption as to admission of that fact falling within the purview of section 137 of the Evidence Act. It is correct that when a party deliberately omitted to cross‑examine the witness on a particular question of fact, such presumption was available but this was not an absolute rule in the sense that for all practical purposes, such part of the evidence of the witness was to be accepted as an absolute admission or proof of a fact. It was open to exceptions. The statement in such a manner was to be construed primarily in the light of the pleadings of the parties. It was permissible to construe such evidence alongwith the evidence of the other witnesses, produced by the same party and alongwith the evidence produced in rebuttal by the opposite party. In absence of these conditions, of course, such a statement may be taken as an admission of the fact but not otherwise.

12. In the present case, it is noticed that there were two vendors of a common transaction made through a registered sale‑deed. Both the vendors appeared as witnesses. Their testimony alongwith the testimony of Gulbahar and Muhammad Malik was deeply appreciated by both the subordinate Courts. There was a concurrent finding of facts that the testimony of 4 witnesses was in conflict and suffered from discrepancies, as such, was unreliable. The finding of the subordinate Courts was not assailed by the learned Counsel for the appellant. It was primarily argued that an omission to cross‑examine Muhammad Rashid may be construed as an admission. The statement of Muhammad Rashid is defective in the sense that it is not found compatible with the provisions of section 18, Right of Prior Purchase Act. It does not refer to description or kind of the property desired to be alienated and its proposed price. Unless these two conditions were well satisfied, a bald statement of a vendor on that score, was not enough to deprive the pre‑emptor of his vested right.

13. The aforesaid reasons lead to the conclusion that the appeal merits no consideration. It is, therefore, dismissed. In presence of the legal proposition raised in the appeal, no order as to costs. AA./27/H.CA. Appeal dismissed.