P L D 2009 Lahore 473 (PLP)

MIAN SAQIB NISAR, J.

The present appeal i.e. R.S.A. No.157 of 1998 as also R.S.A. No.158 of 1988 are being disposed of together, as both involve common questions of law and facts.

2. Briefly stated the facts of the case are, that the appellants in both the appeals, who at the relevant time were minor children of Colonel (Reid.) Shahzad Ahmad Khan, brought two suits for pre-emption under the Punjab Pre-emption Act, 1913 through their father challenging the sales of the suit lands (described in the plaints), which were effected in favour of the respondents by Safeer Ahmed Khan (in appeal. No.157/1988) and Mst. Bushra Khanum and Mst. Sattara Khanum (in Appeal No.158/1988), claiming superior right of pre-emption on the basis of being collaterals of the vendors; the suits were contested by the respondents mainly on the ground that the father of the plaintiffs was present at the time of the sale who was offered to purchase the property, but he refused. Besides, that before the impugned sales, the sales for the property was advertised by publication of notice in the newspaper but the plaintiffs/defendants never came forward; earlier another sale transaction (not inter se the parties) was pre-empted by the plaintiffs through their father but subsequently, they withdrew their claim after extorting money. So they are habitual litigants, and this has reflection upon their bona fides, thus on account of the above, the defence set out was/is that the respondents are estopped by their own conduct, to institute the suit; they have waived their right of pre-emption, have not approached the Court with clean hands; their right of pre-emption was also controverted; issues were framed; parties were put to trial and the learned Civil Judge after recording of the evidence of the parties, vide judgments and decree dated 16 7-1984 and 24-9-1984 allowed both the suits by returning its findings in favour of the plaintiffs/pre-emptors particularly on the issue of the superior right of pre-emption and on the other relevant issues against the defendants/respondents. However, on appeal of the respondents, which were allowed the findings of the trial Court on the issues of waiver, etc have been reversed mainly by relying upon the judgment reported as Nascer Ahmad, v. Arshad Ahmad PLD 1984 SC 403 and the plaintiffs were found to have been waived their right of pre-emption and having approached the Court with unclean hands and estopped by their own conduct to file the suit for pre-emption. But the findings on the issue of plaintiffs'/appellants' superior right of pre-emption were upheld. Aggrieved of above, the appellants filed R.S.A. No.157/1988 and R.S.A. No. 158/1988, before this Court, which were allowed on 26-1-2001 and the judgments and decrees of the learned Appellate Court were set aside and that of the learned trial Court were upheld. It may be relevant to mention here that as the findings of the two forums below were not assailed by the respondents on the proposition of superior right of the pre-emption either through cross objections or even orally, therefore, decision in this regard was given. Anyhow, against the above, the respondents preferred C.A. No.283/2001 and C.A No.325/2001 and the Honourable Supreme Court of Pakistan vide judgment dated 22-3-2007 by accepting the above, remanded the matter. It may be pertinent to state here that the apex Court has given no decision about the findings of this Court on issues of waiver, etc., which earlier went in appellants' favour. The judgment of Honourable Supreme Court is reproduced as below: "The learned counsel for the parties when during the course of arguments, were inquired that in what manner the minor children of Colonel (Retd.) Shahzad Ahmed, without being owner of the land in the village could exercise the right of pre-emption and maintain the suit before opening the succession, they submitted that this question was not specifically dealt with at any stage and probably the superior right of pre-emption was claimed under clause under clause thirdly of section 15 of Punjab Pre-emption Act, 1913 which provides as under:-- "Person in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property.-- Subject to the provisions of section 14, the right of pre-emption in respect of agricultural land and village immovable property, shall vest... (a)

(b)

firstly

Secondly

Thirdly, in the persons, not included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold:-- Provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and thirdly shall be read as follows;-- Thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold.

2. The learned counsel for the parties, however, conceded that this fundamental question to decide the fate of the case was not properly considered and consented for remand of the case to the High Court for determination of the above question.

3. In view thereof, we without dilating upon the other issues on merits, set aside the impugned judgment and remand the case to the High Court for decision of the R.S.A. afresh after considering the question referred to above in the scope of section 15 of the Punjab Pre-emption Act, 1913." Before proceeding further in the matter, I feel expedient to reproduce (relevant portion of) paragraph No.4-1 of the suit bearing No.307/1980 titled Fawad Ahmad Khan and others v. Aslam and others in which the plaintiffs have given the pedigree table so as to prove their relationship with the vendor which is as follows;-- It is on the strength of above, that the plaintiffs' claims to be the collaterals. In the written statement, this relationship has been denied in the following words:-- While in the other Suit No.310/1980 titled Asfand Yar Ahmad Khan and others v. Ghafoor Ahmed and others in which the sale of the land measuring 78 Kanals has been challenged, it is the same pedigree table, except Safeer Ahmed Khan son of Bashir Ahmed Khan is the vendor. Paragraph No.4-1 of the written statement is also the same. In both the case, upon the issue No.12, "whether the plaintiffs have superior right of pre-emption as against the defendants", the findings have been given by the learned trial Court in favour of the appellants and against the respondents holding that they have proved the aforesaid relationship with the vendor and thus has a superior right of pre-emption. This finding has been affirmed by the Court of appeal holding that "the appellants/plaintiffs are the collaterals." No cross objections/appeals have been filed by the respondents against the concurrent finding of fact on issue No.12 and when questioned in the Court, Dr. A. Basit, learned counsel for the respondent has conceded the pedigree table mentioned in the respective plaints depicts the correct relationship.

3. Mirza Naseer Ahmad, learned counsel for the appellants has argued that it is not necessary that at the time when the sale is made by a vendor, the person who initiates the pre-emption action should be entitled to inherit his estate, rather he (the pre-emptor) should be the one standing in the line of heir. It is also submitted that if any person who is close in degree of succession, does not sue for the pre-emption, the next in the line cannot be debarred on that account. Thus even if the plaintiffs'/appellants' father or any other legal heir of the vendors have not filed the suit for the pre-emption that would not debar and prevent them to do so. Reliance in this behalf has been placed upon the judgments reported as Jalal Din v. Saeed Ahmad and others (PLD 1979 SC 879), .Muhammad Shafi and 3 others v. Muhammad Hussain and another (2006 CLC 899), Jan Muhammad and others v. Kundan Main and 14 others (PLD 2007 SC 535), Muhammad and another v. Muhammad Yar and another (PLD 1986 SC 231), Allah Dad v. Muhammad Khan (1986 SCMR 707) and Mst. Raz Khanum Bibi v. Nazir Ahmad and others (1985 SCMR 1725). On the question of waiver, etc., it is submitted that the earlier decision of this Court has not been set aside by the Honourable Supreme Court, which is thus intact; anyhow, without prejudice to the above, he has argued that the appellants/pre-emptors were minors at the relevant point of time, even the father being a legal and natural guardian could not waive their right of pre-emption. In this behalf, support is drawn from the judgments reported as Naseer Ahmed v. Arshad Ahmad (PLD 1984 SC 403), Jam Part v. Muhammad Abdullah (1992 SCMR 786) and Noor Muhammad and 3 others v Jahangir Ali and 8 others (PLD 1987 Lah. 473).

4. Dr. A. Basit, learned counsel for the respondents has stated that at the time, when the sales were made, father of the vendor namely Bashir Ahmed Khan as also their children were alive and thus they were nearer kins, who in case of death of the vendors, would inherit and not the plaintiffs, who were distinct relatives at the best, the children of the cousin of the vendors. It is also argued that the concept of collateralship as generally understood in other faiths for the conferment of the pre-emption right, is not applicable to the pre-emption cause in the case of sale made by a "Muslim a vendor, because, as per the proviso to section 15, the collateral to means "Thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold." It is, therefore, submitted that the inheritance in the above context means, qua those who would inherit the estate of the deceased vendor on the day of his death and not those, who may inherit in an obscure eventuality; in support of his contentions, he too has placed upon the judgment reported as Jalal Din v. Saeed Ahmad and others (PLD 1979 SC 879) and also Muhammad Ishaq v. Muhammad Sadiq (2007 SCMR 1478). On the issue of waiver and estoppel, it has been argued that according to the position established on the record, the appellants' father was well aware of the sales in question; earlier, the appellants had challenged another transaction through their father, but after having extorted money from the vendee of that case, the claim was withdrawn meaning thereby that they are habitual litigants and blackmail innocent vendees in the garb of their so called pre-emptory right. It is also submitted that prior to the sales, Bashir Ahmed Khan, father of the respondents has issued notice in the daily Nawa-e-Waqat offering the sale, but despite the above, the appellants did not come forward and resultantly, they are estopped by their own conduct to initiate pre-emption action and would have waived their right of pre-emption.

5. Heard. As has been mentioned earlier, the pedigreetable reproduced in the plaints and the relationship depicted thereby, is not in issue; the two Courts below have given findings against the respondents on the superior right of pre-emption, which has not been challenged through any cross objections. Be that as it may, as the matter has been remanded by the Honourable Supreme Court for determining the issue of superior right of pre emption, therefore, in the context of this verdict, the key questions, which arise for the resolution are; presuming the death of the vendor on the date of sale if those LRs who shall be entitled to inherit his estate shall have the right of pre-emption alone? And if a legal heir, who is close in degree of succession does not exercise his right, the action cannot be legally maintained by the remote kin, at whatever position of inheritance he may be standing?. The answers have been comprehensively 'provided by the following judgments cited above as Jalal Din v. Saeed Ahmad and others (PLD 1979 SC 879), in paragraph No.10, it has been held as under: -- "Learned counsel for the petitioner, again referred to Sabz Ali Khan v. Khair Muhammad Khan (ILR 3 Lah. 48). This case, instead of favouring the petitioner, rather goes against him. In this case, the Privy Council approved Jang Bahadar Khan v. Karam Khan and others (1908 21 PR 132) and affirmed the view that the law conferred right of pre-emption on the whole line of heirs and not merely on the next and nearest heirs at the time of sale, it being provided inter se that the right will he determined by the order of succession, i.e. the nearer heir would exclude the more remote. In that case, namely 21 PR 1908, the vendor had sons and brothers, who had claimed to pre-empt, and who were admittedly nearer in succession to be vendor than the plaintiff pre-emptor as, but the learned Judge held that section 15, clause (a) was applicable to the case, though the nearer heir had not sued for pre-emption. It is nowhere laid down in any case, and none was brought to our notice, that if the nearer heirs does not sue still his merely being in existence will be a bar to the suit of the remote or remoter heirs and, obviously, there can be no such rule, because, nearer heirs may have their own reasons not to exercise a right of pre-emption, for example, poverty lack of funds, dislike for landed property or for that particular land, paucity of, amenities, resources, means or ability to property cultivate, handle or develop that land, apprehension of development of hostility and bad blood etc. with the purchaser or others. The order of succession is to be examined, therefore, only in competition with a vendee or a rival suitor, who, in fact has filed a suit and not in abstract, because, pre-emption is a statutory right to enforce which one has to file a suit and it cannot he that even if he has not filed a suit still his right is to be maintained or given effect to in his absence, without his assertion or desire, not by passing a decree in his favour but by precluding the suit of others who have exercised that right and filed a suit for its enforcement." In Muhammad and another v. Muhammad Yar and another (PLD 1986 SC 231), while keeping in view the judgment supra (Jalal Din's case), it has been held that "This principle applies to the present case. The fact that Muhammad Yar gets a remoter position vis-a-vis Mst. Ahmo on account of his mother, who has not filed a suit for pre-emption as against the present petitioner, will not make any difference-so long as Muhammad Yar is under the law entitled to inherit the property of Mst. Ahmo at some stage." On account of same Jalal Din's case, it was further held that "However, if the vendee is an utter stranger, then the whole body of heirs, failing them two or more thereof, and failing them any individual or a class or a group can sue for the whole bargain." From this dictum too, it is clear that under the provisions of section l5 (thirdly) applicable to the cases of Muslim pre-emptors, it is not the person, who at the time of sale presuming the death of the vendor shall be the one alone having the right of pre-emption, rather the entire line of successors shall have the right, howsolow in the degree he (such successor) may stand, notwithstanding his position in the queue of succession and even that he may never be able to ever inherit the State due to the others (LR's) who are nearer to the vendor in relation and may exclude him from the succession when the sale was made; this is so because their (pre-emptors) contest in the context of pre-emption law is with the vendee who is a stranger and shall have no right of succession at all; furthermore, if any of the near kips (1-Rs) has not initiated a pre-emption action, it may he for multiple reasons, such as the paucity of funds; not being interested in the purchase, etc., but this shall not block the rights of the other LR's in the queue to exercise their right. Reliance in their behalf can be placed upon the cases reported as Mst. Raz Khanum Bibi v. Nazir Ahmad and other (1985 SCMR 1725) and Muhammad Shafi and 3 others v. Muhammad Hussain and another (2006 CLC 899), therefore, on account of the above, and even from the judgment to which reliance has been placed by Dr. A. Basit, learned counsel for the respondents, I am convinced that the appellants have the superior right of pre-emption against the respondents and the findings of the two Courts below on the relevant issue are factually and legally valid.

6. Now attending to the question of waiver, estoppel, etc and without prejudice to the appellants' plea that the earlier decision in this behalf has not been set aside by the apex Court, which has attained finality. I am of the considered view that mere presence of the pre-emptor at the time of sale by itself would not be suggestive of his participation in the transaction, to denude him on the ground of waiver of his legal right to pre-empt the sale. Waiver is an intentional relinquishment of one's known right and unless there is cogent evidence reflecting the person's conduct clearly indicative of the abandonment of his right, he cannot be said to have deliberately foregone his right. In both these cases, Muhammad Ibrahim (D.W.I) has not deposed, if plaintiffs' father was present at the time of sales; the land was offered to him (Col. Shahzad Ahmed Khan), who refused to purchase the same. D.W.5 Nazir Ahamd in R.S.A. No.157/1988 and Muhammad Siddique (D.W.5) in R.S.A. No.158/1988, are the defendants themselves and much weight cannot be given to their testimonies. The only statements left behind for consideration are those of DW-4 in the respective cases namely Muhammad Hanif and Jaffar Ali, who have stated that the sale was offered to Col. Shahzad Ahmed Khan, but he refused. Muhammad Hanif, in his examination in chief, has mentioned that at the time of sale, Ghafoor, Muhammad Ali, Ibrahim, Jaffar and Nazir Ahmad (defendant) were also present but Ghafoor, Muhammad Ali, Jaffar and lbrahim have not been examined to corroborate this evidence. In R.S.A. No. 158/1988, Jaffar has only specified the name of Ibrahim, who was not produced. Therefore, the solitary statement of D.W.4 in both the cases is not It sufficient and adequate to non-suit the appellants on the basis of the alleged waiver by their father.

7. The argument that D.W.4 and D.W.5 have not been cross-examined on the point of waiver and therefore, their testimonies must be taken to have been accepted by the appellants, is not correct, because they were duly cross-examined and suggestion was put to them, that Col. Shahzad Ahmed Khan, was not present at the time of the sale and was not offered the land to which he declined.

8. In order to non-suit a pre-emptor on the ground of waiver, strong and positive evidence must be led by the defendant/vendee to establish the above factum. In the instant cases, such evidence is not available on the record and therefore, the respondents have failed to prove that Col. Shahzad Ahmad Khan, in any manner, had waived the right of pre-emption on behalf of the appellants. The case of the appellants is squarely covered by the dictums specified in preceding para No.3.

9. There is another aspect of the matter, whether the father of the respondents, who were admittedly minors at the time of the sale, could waive the right of pre-emption on their behalf. The learned counsel for the appellants has relied upon the judgment of the Division Bench of this Court reported as Noor Muhammad and 3 others v. Jahangir Ali and others (PLD 1987 Lah. 473), to contend that the right of the minors to pre-empt the suit property, cannot be given up by their father, even on account of participation in the negotiations of sale and giving an undertaking to the vendee not to institute a suit for pre-emption. In this behalf, relevant paragraph of the judgment is reproduced as under:-- "12. ..Although no specific issue was framed by the trial Court to deal with the above mentioned plea, yet the evidence produced by the appellants in support of their plea was received. Respondents Nos.1 to 3, however, did not produce any evidence in rebuttal probably for the reason that the appellant's evidence even if accepted by the Court, would not preclude them from exercising their right of pre-emption, as the participation of their father and strand-father in the negotiations of sale and the undertaking given by them at the time of sale that no suit to pre-empt the sale would be instituted, could not affect their right of pre-emption. "

10. To counter the above, the learned counsel for the respondents, h not been able to cite any ease law from our jurisdiction but to meet the aforesaid judgment, has placed reliance upon Sadhu Wahab & others v Aladad Khan (No.1 Punjab Record 1) and Sham Singh v. Suhel Singh (No.143 Punjab Law Reporter 1913). I am afraid, these judgments are not applicable to the instant matters, as those are based upon the Punjab Pre-emption Act II of 1905 and are not under the Punjab Pre-emption Act, 1913. Even otherwise, as held in the judgment of Sham Singh (Supra) it has been laid down that a pre-emptor who claims under the proviso to section 11 of the Punjab Pre-emption Act, 1905, is bound by the waiver of his father although, as pointed out in No.155 PWR 1911=7 P. R. 1912, it is not so in cases governed by section 12 of the Act canned counsel for the respondents, has failed to show, if there is any provision analogues to proviso to section 11 of Punjab pre-emption Act, 905, in the Punjab Pre-emption Act, 1913, so as to preclude the appellants on the basis of the waiver of their father. This change of law by omission in 1913 Act is significant and purposeful, which obviously means that a father's waive should no more be taken as the waiver on part of his minor children.

11. In view of the above and following the law laid down in the case reported as Noor Muhammad and 3 others (Supra) without conceding or holding that father of the appellants waived to pre-empt the sale, but even if so assumed, it would only be to the extent of his owner rights and not qua the plaintiffs, who were the minors, and he in law had no 'authority to waive their rights. It may be observed, that it is not the case of the respondents, that the pre-emption suit was Benami and for the benefit of Col. Shahzad Ahmed Khan, therefore, the learned Appellate Court, has seriously erred in law in non-suiting the appellants on the plea of waiver; furthermore, the compromise in the case of Ibrahim and withdrawal of the suit, would have no reflection on the present litigation, simple withdrawal of the matter without the evidence about the intention/consideration behind it cannot be presumed the motive of the alleged withdrawal. In the light of the above discussion, by allowing these appeals, the judgments and decrees of the learned Appellate Court are set aside and those of the learned trial Court are upheld. M.B.A./A-109/L Appeals allowed.