1980 PLP 1600 (CLC)

S. 4

Pre-emption suit-Superior right-Determination of waiver of right held depends on facts and circumstances of each case and no yardstick, of universal application could be laid down. Sh. Naveed Shahryar for Petitioner. Shahid Hussain Kadri for Respondent. Date of hearing : 2nd October 1979. The dispute relates to the land measuring 4 kanai,I situate in Village Miana Gondal, Tehsil Phalia, District Gujrat, which was sold by one Msl. Rasulan to the appellant. The respondent filed a suit to pre-empt this sale. The appellant contested the suit inter alia on the ground that the pre-emptor participated in the negotiations, and thus by his conduct, was precluded from filing the suit. In order to prove waiver the appellant primarily relied on the statement of Fiaz Ahmad, Patwari., examined by him as D. W. 2 who stated that Mutation No. 4221 was in the first instance entered in the name of the respondent, but later on both the parties along with the vendor, came to him ;and the respondent told him that his bargain could not be struck with the vendor ; and that he got the land sold to the appellant.

2. The learned Civil Judge accepted the respondent's superior right of preemption, held that the Patwari's statement was not sufficient to prove waiver and by his judgment dated 29th September 1977, decreed the respondent's suit in his favour. The learned District Judge upheld the findings of the learned trial Court and maintained that D. W. 2, had failed to mention in his statement as to what was the amount offered for the transaction, proposed between the vendor and the respondent. Accordingly, he dismissed the appeal on 17th September 1978. The unsuccessful vendee has now come up is second appeal.

3. The appellant's learned counsel confined his submissions to the issue regarding waiver and contended that testimony of Fiaz Ahmad, D. W. 2, was misread. He questioned the propriety of the observations made by the learned District Judge as to the non-mention by this witness of the sale price, at which the land was offered to the respondent by the vendor and pointed out from his statement, that the witness had disclosed that the respondent had also purchased the land for Rs. 5,

000. In this connection, the learned counsel further relied on the testimony of Altaf, P.W. 1, to argue that this witness also stated that the sale transaction was settled by the respondent at Rs. 5,

000. He also referred to the deposi tion of the respondent. On these premises, it was forcefully urged that Mere sufficient material to warrant a conclusion that the respondent himself declined to purchase the lard for Rs. 5,000 and thus waived off his superior right of preemption.

4. The respondent's learned counsel, on the other hand submitted that both the learned lower Courts, after proper appreciation of evidence, gave concurrent finding of fact against the appellant, which cannot be disturbed in second appeal and thus sought sustenance of the judgment and decree. under appeals . I have perused the entire evidence. It is correct that Fiaz Ahmad, D.W. 2, stated that the respondent also got the land for Its. 5,000 but his alleged failure to mention the sale price, was not the sole reason, which weighed with the learned District Judge in discarding his testimony. It is in the evidence of this witness, that he did not make any entry in the Rozenamcha Waqiati, concerning the transaction which took place between the vendor and the respondent, and that the latter revoked the bargain. 1n fact, the assertion made by D. W. 2, that the respondent willingly withdrew from the transaction, does not figure anywhere in the record maintained by him. The case set up by the respondent was that it was the vendor who resiled. His version was believed and whereas the appellant's contention was disbelieved by the learned Courts below. The conclusion reached by them, rests on appraisal of evidence and apprecia tion of number of facts. In such like cases it would be misleading to attack the soundness of a conclusion, on the basis of a single isolated fact. The entire combination of circumstances and the cumulative effect of whole evidence should be considered. In this view of the matter I am inclined to agree with the respondent's learned counsel that in the cir cumstances of the case, there is no Whiled ground for interference with the concurrent findings of the learned Courts below.

6. The appellant's learned counsel referred to some case-law but it is useless to embark upon the detailed examination of these precedents. It will suffice to observe that waiver of a right depends on the facts and circumstances of each case and there can be no yardstick of universal applicability. The law enunciated in these rulings, was with reference to the peculiar facts of those cases and is of no avail to the appellant. 7. `There is no merit in this appeal, which is dismissed with costs. M. Y. M. Appeal dismissed.