2008 PLP 296 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Through this petition petitioners seek leave to appeal against the judgment of the Lahore High Court, Multan Bench, Multan dated 3-3-2000 vide which the judgment of the First Appellate Court was affirmed and the petitioners' appeal was dismissed.

2. Facts in brief are that respondent Muhammad Sharif filed a suit for pre-emption for the land which was sold through Mutation No.492, dated 27-2-1964 for a sale consideration of Rs.36,

000. Superior right of pre-emption was claimed against the vendee on the ground of being co-sharer of the suit-land and proprietor in the village. The suit was dismissed with costs vide judgment/decree dated 30-4-1974. In appeal, however, the judgment and decree was reversed and the suit was decreed by Additional District Judge, Muzaffargarh vide judgment/decree, dated 14-10-1976. The First Appellate Court decreed the suit by holding that the respondent/plaintiff was co-sharer in the estate, therefore, had superior right of pre-emption; Mutation No.201 dated 3-7-1956 and Mutation No.214 dated 25-6-1957 (Exh.P.3) were relied upon in support of this finding of fact. The High Court affirmed the finding and did not find any defect or error in the judgment/decree of the learned First Appellate Court to warrant interference.

3. Learned counsel for the petitioners seeks leave to appeal on the ground that both the Courts have failed to appreciate the evidence qua ownership in the estate was led by respondent/plaintiff at a belated stage; that respondent/plaintiff should not have been allowed to lead evidence and that the latter had relinquished his right of pre-emption and the suit, therefore, was not maintainable. In support of the submissions made learned counsel relied upon PLD 1992 Lah. 92 and 1993 CLC 1580.

4. We have heard the learned counsel for petitioners and have gone through the impugned judgment and the evidence on record. The witnesses produced by petitioners/defendants in support of the issue of waiver were D.W.10 Ghulam Farid and D.W.14 Muhammad Tufail. Admittedly D.W.14 Muhammad Tufail is related to the petitioner/defendant and D.W.10 Ghulam Farid merely stated that respondent/plaintiff was present at the time of marking. Mere presence of a person at the time of marking would not constitute estoppel. This is in line with the law laid down by this Court in the case of Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133 wherein it was held as under:-- "Until a sale actually takes place, no person can assume to have a right of pre-emption which is not a right in property although it is a vested statutory right. The mere fact, however, that `S' did not outbid the highest bid of `B' did not show that he was no longer interested in claiming the right to pre-empt the property in dispute. The failure of a person entitled to pre-empt to outbid the purchaser does not amount to waiver." So far as the argument of learned counsel of the petitioners that the additional evidence led by respondent/plaintiff should be excluded is concerned, the same is not tenable as admittedly when respondent/plaintiff was allowed to lead the evidence, the petitioners did not raise any objection. This objection was not even raised in the grounds of appeal before the High Court. It is in these circumstances rather late m the day for the defendants/petitioners to urge this point. The precedented case-law relied upon by the petitioners' counsel is distinguishable both on facts and law laid down by this Court referred above.

5. What has been discussed above, we do not find any merit in this petition, which is dismissed, and leave to appeal is declined. S.A.K./G-34/SC Leave refused.