2026 PLP 406 (SCMR)

SHAHID BILAL HASSAN, J.

Facts, in precision, are as such that the present dispute arises out of the agricultural land measuring 151-Kanals and 11-Marlas, situated in Village Raja Jang, District Kasur, which was sold through registered sale deed dated 17.07.1967 by Samanda ( Vendor ), father of Bahadur ( Respondent/Pre-emptor ), for a sum of Rs. 52,800/- to the Appellants. The respondent/pre-emptor instituted a suit for possession through pre-emption on 13.07.1968 on the ground of being the son of the vendor and thus having a superior right of pre-emption under the Punjab Pre-emption Act, 1913. The suit was contested by the present petitioner(s) while submitting a written statement, controverting averments of the plaint, raised preliminary as well as factual objections. Divergence in pleadings was summed up into issues. Later on, an additional issue No.8-A was framed. After recording of pro and contra evidence, the learned Trial Court vide judgment and decree dated 29.06.1978 decreed the suit in favour of the pre-emptor. Being aggrieved, the present petitioners preferred an appeal. The learned Appellate Court vide judgment dated 14.10.1978 set aside the decree ibid and remanded the case to the Trial Court with a direction to decide Issue No.8-A afresh. In the post remand proceedings, the parties led their evidence on issue No.8-A. However, the Respondent challenged the interim order dated 01.03.1980 through a Revision Petition which was accepted by the Learned Additional District Judge on 22.09.1983 with a direction to the Trial Court to record specific findings on issue No. 8-A. The Revisional order was assailed before the Learned High Court by the Appellants through a Writ Petition which was accepted vide order dated 27.05.1989 and a direction was issued to the Trial Court to decide the application, after recording of evidence on all other issues. Finally, the Learned Senior Civil Judge dismissed the suit after recording findings on issues Nos. 1 and 8, against the Pre-emptor. However, issue No. 8-A (regarding partial pre-emption) was decided against the Appellants. It was held, vide issue No. 1 that no decree could be passed in the suit for pre-emption after 31.07.1986 as laid down in the Said Kamal case (PLD 1986 SC 360). Feeling aggrieved, the Respondent preferred an Appeal before the District Judge, which was dismissed for non-prosecution on 07.12.1991. The restoration application was also dismissed on 12.11.1992. However, the F.A.O. filed by him succeeded before the Learned High Court and the case was transmitted to the Learned Additional District Judge, Lahore for decision of the matter afresh. The appeal of the Respondents was dismissed by the Additional District Judge on 12.12.1998. Thereafter, the Respondent filed R.S.A. No. 21/1999 assailing the judgement dated 12.12.1998. It was accepted by the Learned High Court on 10.06.1999 holding that since the decree had been passed in favour of the respondent before 31.07.1986, therefore, following the law settled in the case of Sardar Ali (PLD 1988 SC 287) the Appeal should be decided on merits, under the old law of pre-emption. In the post-remand proceedings, the appeal was accepted by the Learned Additional District Judge on 28.09.2000, thereby, decreeing the pre-emption suit in favour of the Respondent. Feeling aggrieved by the decision the appellate Court, the Appellants filed an R.S.A. No.107/2000 before the Learned Lahore High Court which was dismissed through the impugned judgement dated 30.06.2011.

2. Leave having been granted by this Court vide order dated 31.12.2012 to consider the legality and correctness of the impugned judgment.

3. We have heard the learned counsel(s) for the parties at length and have examined the record with their able assistance.

4. Learned counsel for the Appellants has contended that the respondent/pre-emptor, being fully aware of the sale transaction, having remained present at the time of bargain and registration, and having failed to assert his right either before or immediately after the sale, had, by his conduct, waived his right of pre-emption and was consequently estopped from maintaining the suit. It is further argued that the Learned High Court fell into grave error by treating mere presence as inconsequential, despite overwhelming circumstances demonstrating acquiescence and implied waiver.

5. Conversely, learned counsel for the Respondent has supported the impugned judgment, contending that mere presence at the time of sale does not amount to waiver unless accompanied by positive and overt acts showing relinquishment of the right.

6. Considering the arguments advanced at bar and going through the record, it is observed that the record unmistakably demonstrates that the pre-emption suit is the product of collusion between the Vendor and the Pre-emptor/Respondent. At the relevant time, the Pre-emptor/Respondent was admittedly residing under the same roof along with his father, the Vendor, thereby leaving no room for doubt that he had full knowledge of the sale transaction, because nothing to show that he had strained relations with Samanda, his father at the relevant time, has been brought on record. The transaction progressed through various stages, including the payment of earnest money, execution of the sale deed, and its due attestation by the registering authority. Despite such knowledge, the pre-emptor/ Respondent deliberately maintained silence and approached the Court only on the last day of limitation. No explanation, much less a satisfactory one, has been offered for this calculated inaction, which clearly undermines the bona fides of the suit. (Underline for emphasis)

7. The case of the Appellants has throughout been that the Preemptor/Respondent by his own conduct was not only privy to the transaction but had waived his right to pre-emption, as is evident from the following Preliminary Objections Nos. 10 and 11 of the present appellants in their written statement:- The expression "Waiver" has been subject of judicial comment and has also been defined in Black's Law Dictionary, as:-- "The intention or voluntarily relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right or when one dispenses with the performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something the doing of which or the failure of forbearance to do which is inconsistent with the right, or his intention to rely upon it. The renunciation, repudiation, abandonment, or surrender of some claim, right, privilege, or of the opportunity to take advantage of some defect, irregularity, or wrong. An express or implied relinquishment of a legal right." Waiver could both be express or implied. "Express waiver is the voluntary, intentional relinquishment of a known right, Implied waiver refers to a situation where one party has pursued such a course of conduct with reference to the other party as to evidence intention to waive his rights or the advantage to which he may be entitled, or where the conduct pursued is inconsistent with any other honest intention than an intention of such waiver, provided that the other party concerned has been induced by such conduct to act upon the belief that there has been a waiver, and has incurred trouble or expense thereby". (Black's Law Dictionary) In Abdul Hameed and others v. Muzamil Haq and others (2005 SCMR 895), this Court held that waiver of the right of pre-emption need not always be express and may be inferred from conduct, where the pre-emptor, despite full knowledge of the transaction, fails to assert his right and allows the vendee to complete the sale and take possession. While elaborating on this proposition, this Court has held as under:

14. The facts in the instant case do not reflect an express waiver. However, the conduct of the respondent/plaintiff does persuade the Court to infer implied waiver. It is in evidence that he was aware of the transaction, that he was intimate enough to the vendor and in the event of expression his desire to purchase the suit-land, the former would have sold it to him and that the very fact that the sale was allowed to take place and sale price was deposited in personal account of respondent/plaintiff would show that he did not choose to exercise the said option and thereby impliedly waived his right to pre-empt. Most significantly, in Hassan Din and others v. Manzoor Hussain and others (2010 SCMR 810), this Court, while dealing with an almost identical factual matrix, held that where the pre-emptor was residing with the vendor, had full knowledge of the sale, remained present during preparation and registration of documents, and failed to assert his right at the relevant time, such conduct amounted to waiver by acquiescence, rendering the suit liable to dismissal.1

8. It is by now well-settled that the right of pre-emption, though statutory, is a weak and piratical right, and the person invoking it must approach the Court with clean hands and unimpeachable conduct. This Court in Naseer Ahmed v. Arshad Ahmad (PLD 1984 SC 403) has unequivocally observed that pre-emption suits, particularly by close relatives of the vendor, often mask collusive designs and mala fide intent, and such conduct disentitles a pre-emptor to equitable relief

2. Moreover, this Court while dealing with the matter of estoppel in Dr. Muhammad Javaid Shafi3 case has held as under:

8. According to Article 114 of the Qanun-e-Shahadat, 1984 which reads as "

114. Estoppel: When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing", a person is estopped by his own conduct, if he though was aware of certain fact(s), which is likely to cause harm to his rights and adversely affect him and is prejudicial against him, avowedly or through some conspicuous act or by omission, intentionally permits and allows another person to believe a thing to be true and act on such belief without taking any steps to controvert or nullify such adverse fact and instead he sleeps over the matter. In other words, where a person who is aggrieved of a fact, he has a right, rather a duty to object thereto for the safeguard of his right, and if such a person does not object, he shall be held to have waived his right to object and subsequently shall be estopped from raising such objection at a later stage. Such waiver or estoppel may arise from mere silence or inaction or even inconsistent conduct of a person. Applying the above principles to the facts of the present case, it is evident that the pre-emptor/Respondent was not only aware of the sale transaction but, at the very least, remained present at the time of execution and registration of the sale deed. Despite such knowledge, he neither objected to the sale nor asserted his right of pre-emption. He allowed the transaction to be completed and the vendees to act upon it, thereby inducing a legitimate expectation that the sale would not be disturbed.

9. The High Court, while dismissing the R.S.A. through the impugned judgement, failed to properly appreciate the cumulative effect of the Respondent s conduct and treated presence in isolation, ignoring the settled principle that waiver is to be inferred from the totality of circumstances, not from a single fact viewed in vacuum. Such misreading of evidence and misapplication of settled law constitutes an error of law warranting interference by this Court.

10. For the foregoing reasons, this appeal is allowed, the judgment dated 30.06.2011 passed by the Lahore High Court in R.S.A. No. 107 of 2000 and judgment and decree dated 28.09.2000 rendered by learned Additional District Judge concerned, are set aside; consequent whereof the suit for possession through pre-emption instituted by the Respondent is dismissed. The parties shall bear their own costs.

11. Before parting, we are constrained to observe that the practice of filing frivolous and collusive suits has become rampant. Such litigation clogs the pipelines of justice, causes delay in the adjudication of genuine claims, and results in a grave waste of judicial time at all levels, including this Court. The Respondent has dragged the present matter through the courts for the last sixty years, which was nothing but a vexatious litigation. Such conduct has unnecessarily burdened the courts and contributed to the ever-increasing pendency of cases, thereby slowing the administration of justice. Such vexatious and frivolous litigation must be dealt with firmly and strongly discouraged, particularly by the learned Trial Court(s), which stand at the forefront and are considered backbone of the judicial system. This growing evil of false and vexatious litigation must be nipped in the bud by adhering to the doctrine of limine control . MH/J-1/SC Appeal allowed. 1

22. The respondents/plaintiffs despite having knowledge about the transaction had never asked the vendor, who, according to them, was their father/grandfather, to sell the land to them nor they notified the appellants/respondents about their intention to claim their right of pre-emption. The respondents'/plaintiffs' own witness stated, on oath, that at the time for registration of sale-deed, the respondent was present, which statement is binding upon the respondents having been made by the witness produced by them. The respondents/plaintiffs did not claim their right of preemption at the time of registration of the sale-deed or immediately thereafter, and allow the appellants/respondents to take possession of the land in question and develop the same. 2

7. It is universally accepted that pre-emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the preemptors are close relatives of the vendors themselves? and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it ; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object (as appears to be the intention in the present case) to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for pre-emption, which cannot but lead one to assume that there was collusion between the two. We feel that such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend 20 years of his life in litigation and incur huge expenditure which was in many cases even more than the actual price of the land or the property at the time of the sale or auction. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. The latter does not, therefore, deserve relief through Courts of law. 3 Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 Supreme Court 212).