1999 PLP 584 (YLR)

This is a revision petition against the judgment and decree, dated 10‑4‑1988 passed by the learned Additional District Judge, Multan whereby the judgment and decree, dated 12‑4‑1986 passed by the learned Civil Judge, Lodhran was set aside.

2. Brief facts necessary for disposal of the revision petition are that petitioner's real brother Sher Muhammad sold agricultural land (suit land) measuring 3 Kanals and 9 Marlas locating Khewat No.3 situated in Dakhli Mauza Fatehpur, Tehsil Lodhran, District Multan, according to Register Haqdaran Zamin for the year 1966‑67 to the respondent/vendee through registered sale- deed No.3491, dated 21‑12‑1981, that the petitioner/plaintiff pre‑empted the said sale by filing a suit for possession by way of pre emption claiming superior right being real brother of vendor, co‑sharer and owner of the estate. The respondent/vendee/defendant contested the pre‑emption suit. From the divergent contentions of the parties, the learned Trial Court framed the following issues:‑‑‑ (1) Whether the suit is improperly valued for the purposes of court‑fee and jurisdiction? If so, what is the correct valuation? OPD. (2) Whether the plaintiff has waived his right of pre‑emption? OPD. (3) Whether the plaintiff has superior right of pre‑emption? OPP. (4) Whether the ostensible sale price of Rs.21,000 was fixed in good faith or actually paid? OPD. (5) If issue No.4 is not proved, what was the market value of the suit land at the time of sale? OP Parties. (6) Relief.

3. During the proceeding before the learned Trial Court, the respondent's counsel admitted the superior pre‑emption right of the petitioner vide statement, dated 27‑2‑1984, while the petitioner accepted Rs.21,000 as sale price and as such issues Nos.3, 4 and 5 became redundant and on the other issues both the parties led their respective evidence. After hearing the arguments from both sides, the learned Trial Court after deciding remaining Issues Nos.l and 2 was pleased to decree the suit of the petitioner/plaintiff on 12‑4‑1986. The respondent preferred an appeal before the learned District Judge Multan who entrusted the same to the Court of learned Additional District Judge Multan for disposal, who reversed the finding of the learned Trial Court on issue No.2 and accepted the appeal and dismissed the pre -emption suit.

4. The learned counsel for the petitioner has argued that the learned lower Appellate Court has not discussed the reasoning advanced by the learned Trial Court in its judgment and the finding of the learned lower Appellate Court does not find support from the evidence on record and misread the relevant law and failed to follow the law laid down by the superior Courts on the question of waiver in a pre‑emption suit.

5. On the other hand, the learned counsel for the respondent has submitted that the allegations of the petitioner both on facts and law are misconceived.

6. I have given due consideration to the valuable arguments on both sides and have perused the evidence on record and appreciated the law with their able assistance, being fully conscious that I, am not disposing an appeal and only exercising revisional jurisdiction, the scope of both being distinct.

7. Regarding the scope of revisional jurisdiction, in the case of Faiz Alain v. Muhammad Arshad Khan (PLD 1986 SC (AJ&K) 65), the Hon'ble Supreme Court observed as under: "An order passed by a‑subordinate Court can only be interfered with in revisional jurisdiction if in opinion of High Court (i) such Court has exercised or assumed jurisdiction not vested in it by law, (ii) had ailed to exercise or declined to assume jurisdiction vested in it by law, or (iii) while exercising its discretion has taken a procedural step which is contrary to mandatory provision of law or has omitted to take a procedural step, which is required by a mandatory provision of law to be taken, or (iv) while exercising its jurisdiction has taken a procedural step which is contrary to directory provisions or general principle of law and which in final result has given to one party an advantage over other which it would not have got but for fact that step/steps visualised above were taken. If High Court is satisfied that no violation on such matters is made, it has no power to interfere with order even if it differs from conclusion of subordinate Court on question of fact or law." In the present case, the petitioner/plaintiff examined himself as P. W.1 and deposed as under:‑‑ "I have no knowledge of the transaction of the suit land. I was not present in the transaction. I was not asked to purchase the land nor I had refused. We, brothers are residing separately for the last 20/25 years."

8. The defendant examined Bashir Ahmad as D. W.1 who deposed as under:‑‑‑ "Sher Muhammad vendor, his brother Faiz Bakhsh (plaintiff), Haji Muhammad Ramzan and Muhammad Ramzan son of Ahmad Bakhsh and I and Abdul Qadir and Zulfiqar son of Sher Muhammad were present. Faiz Bakhsh was asked that he was brother and may take the land but he refused to take it and that the bargain was also struck by him." In cross‑examination, D.W.1 stated "Faiz Bakhsh was called at the time of bargain by Muhammad Ramzan and Allah Yar and bargain was made at the house of Faiz Bakhsh. Registration took place in Lodhran. Plaintiff was present at the time of registration. The plaintiff had not signed on the registry (sale‑deed)".

9. A suggestion was put to D.W.1 to which he replied "it was incorrect that the plaintiff was not asked at the time of bargain that he may purchase and it was also incorrect that the plaintiff , had not got the bargain struck".

10. Abdul Qadir son of Haji Abdul Khaliq D.W.2 has deposed that Faiz Bakhsh. Sher Muhammad, Zulfiqar son of Sher Muhammad, Haji Muhammad Ramzan, Allah Yar, Bashir Ahmad, Haji Ramzan son of Ilahi Bakhsh were present. Sher Muhammad had asked the plaintiff to take the land. The plaintiff refused to purchase it and got the bargain of land struck. In the cross -examination, he deposed "registry took place after ten days of bargain and it was incorrect that plaintiff was not present in the bargain He was asked to take the land. He admitted that he was not present at the time of registration." Allah Yar son of Muhammad Ramzan appeared as D.W.3 and deposed "1 was present in the bargain. Sher Muhammad, his son Zulfiqar, plaintiff Faiz Bakhsh. Bashir Ahmad, Abdul Qadir and Muhammad Ramzan son of Ilahi Bakhsh were present at the time of bargain. My father Ramzan was also present. At the time of bargain, plaintiff was asked to take the land and he had said that he was not in a position and that he does not want to purchase it and that plaintiff had come at the time of registration and Sher Muhammad had given the amount to the plaintiff to count it and he counted it." In his cross‑examination, he denied the suggestion that plaintiff was not present in the bargain and that he was not asked to purchase the land and that he had not refused. He also stated that it was incorrect that at the time of registration, the plaintiff was not present. He stated that signatures or thumb‑impressions of the plaintiff were not taken on the registered sale‑deed. He also stated that no writing was taken from the plaintiff that he does not want to purchase the land and will not pre‑empt it.

11. Above evidence shows the presence of the plaintiff at the time of bargain and that he was present at the time of registration and that neither his thumb impression was taken nor any writing was obtained from him regarding his refusal to take the land. The knowledge and presence of a person having the right of pre‑emption are not sufficient to prove that he has waived his right. The law on the subject is contained in sections 19, 20 and 21 of the Punjab ‑emption Act, 1913 which read as under:‑‑‑ "

19. Notice to pre‑emptors.‑‑‑ 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 or urban immovable property, in respect of which any persons have a right of pre‑emption, he may give notice to all such persons of the price at which he is willing 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 or any part thereof is situate, and shall be deemed sufficiently given if it be stuck up on the Chaupal or other public place of the village, town or place in which the land or property is situate.

20. Notice by pre‑emptor to vendor.‑‑‑The right of pre‑emption of any person shall be extinguished unless such person shall, within the period of three months from the date on which the notice under section 19 is duly given or within such further period, not exceeding one year from such date, as the Court may allow, present to the Court a notice for service on the vendor or mortgagee of his intention to enforce his right of pre‑emption. Such notice shall state whether the pre‑emptor accepts the price or amount due on the footing of the mortgage as correct or not, and if not, what sum he is willing to pay. When the Court is satisfied that the said notice has been duly served on the vendor or mortgagee, the proceedings shall be filed.

21. Suit of pre‑emotion.‑‑‑ Any person entitled to a right of pre -emption may, when the sale of foreclosure has been completed, bring a suit to enforce that right."

12. In the case of Waryam v. Waryam and another (1986 MLD 2431), this Court has already observed that in order to constitute a valid waiver it is essential that: (i) There must have been a definite agreement to purchase the land at a fixed price between the vendor and the stranger. (ii) The offer to purchase the property must come from the vendor and not from the vendee. (iii) The offer must contain the specific price at which the vendor was willing to sell or the price at which other persons were ready to pay. (iv) That the factum of the relinquishment of the right of pre emption must be proved through cogent and sound evidence. (v) The offer should be to the effect that the vendor wish to sell the land; that the vendee or some other person was ready to pay the fixed amount and that if he, pre‑emptor wished to exercise his right of pre‑emption he could purchase the property at the same price." In the case of Abdul Aziz Khan v. Raja Muhammad Khan (1989 SCMR 503), Hon'ble Supreme Court noticed that when the respondent appeared in the witness‑box he categorically denied that the land was offered to him before its purchase by the petitioner and the evidence led by the petitioner in support of his plea was extremely unsatisfactory and consequently both the High Court and the District Judge were justified in rejecting it and the petition for special leave to appeal arising out of the pre‑emption suit filed by the respondent was dismissed. In the case of Muhammad Sharif v. Abdul Ghani (1988 Law Notes (Lahore) 510), it was observed that mere presence at the time of sale or mere participation in auction for sale of property cannot be regarded as waiver of right of pre‑emption and that it was so held in Baqir and 4 others v. Salehon and 3 others (PLD 1972 SC 133) and Falak Sher v. Muhammad Hanif (PLD 1987 Lahore 91). Similarly, in the case of Muhammad Ashraf v. Ashiq Ali etc. (1987 MLD 356) this Court observed that very strong and cogent evidence was needed to prove plea of estoppel. In the case of Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others (PLD 1982 SC 159), the Hon'ble Supreme Court observed as under:‑‑‑ "On the question of waiver, evidence had been led on behalf of the vendees/appellants to the effect that the pre‑emptor had introduced the vendees to the vendors, that he had facilitated the bargain and that he had been present at the time of the sale. The pre‑emptor had denied this oral evidence. All the Courts below held that mere presence even if accepted, could not amount to waiver. Waiver is a conscious relinquishment or surrender of right. In Fateh Chand and others v. Kirpa Singh and others (48 PR 1912‑‑131 C 561), where the pre‑emptors had been present and had helped in the sale negotiations and one of them had assisted in demarcating the land sold out of a large field, it was held that their conduct, which had actively induced in the vendees' mind the belief that they were perfectly agreeable to the purchase by the vendees and did not intend to enforce their rights, amounted to waiver. But mere presence at the time of the sale has not been considered sufficient to amount to waiver (see Muhammad Bakhsh v. Hassan Bakhsh and others (7 PR 1912). On the same principle, in Baqri v. Salehon (PLD 1972 SC 133) mere presence or even unsuccessfully bidding at an auction had not been considered to amount to waiver and it had been observed that "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". In Shah Bodhraj v. Sundar Singh and another (100 PR 1885), where the plaintiff, a professional petition writer, had made a rough draft of the deed of sale for the defendant, it was held that there was no waiver. In the present case, the oral assertion as to the pre‑emptor's participation in the sale transaction had been denied by him. The question, therefore, whether the evidence produced by the parties showed a conduct on the part of the pre‑emptor amounting to waiver is one of fact and as such the concurrent finding by all the three Courts below will call for no interference." In the case of Sarwar Khan etc. v. Mst. Khadija (1984 Law Notes (Lahore) 968), this Court observed "admittedly no notice under section 19 of the Punjab Pre‑emption Act, 1913 was served upon the plaintiff at the time of sale. The oral evidence led by the appellants to prove that she had waived her right of pre‑emption does not conclusively establish that she was offered the suit land for sale at specific price. It was necessary for the plaintiff to prove, that offer was made to her to purchase the suit land at least at a tentative price in the absence whereof it was not possible to hold that she had waived her right of pre‑emption".

13. In the case of Muhammad Hayat etc. v. Dost Muhammad etc. (1985 MLD 936), it was observed that" it is now well‑settled rule of law that there must be clear and cogent evidence to deprive the pre‑emptor of his right of pre‑emption on the plea that he has waived his right of pre‑emption. Mere oral evidence that the pre‑emptor had knowledge of the sale, would not be enough to establish that he had relinquished his right to pre‑empt the sale. Reference in this behalf may be made to Kidar Nath v. Bagh Singh (AIR 1937 Lahore 604) and Mustaqim v. Sher Bahadar (PLD 1962 (W.P.) Peshawar 14). There must be a positive act of relinquishment or a conduct as would warrant an inference of relinquishment of the right. The evidence produced by the appellants in the present case did not fulfil the above requirement and their plea that the respondents had waived their right of pry‑emption had been rightly rejected by the learned Trial Court". In the case of Sakhi Muhammad v. Muhammad Yar and others (1985 MLD 1481), it was observed that "it is not necessary to reiterate the well‑settled proposition of law that very strong and cogent evidence is required to prove that the pre‑emptor has waived his right of pre- emption. The mere presence of the pre -emptor at the time of settlement of bargain or even at the time of registration of the sale -deed or attestation of the mutation of sale would not preclude him from exercising his right of pre‑emption. It must be established that he had intentionally relinquished his right to pre‑empt the sale effected in his presence". In the case of Naseer Ahmad v. Arshad Ahmed (PLD 1984 SC 403), the respondent purchased land and petitioner filed suit for pre‑emption which was resisted by the respondent/vendee who asserted inter alia that the vendor had first offered the land for sale to the petitioner through Panchayat for a certain price but latter had refused to buy it and the petitioner/pre‑emptor only had appeared in support of his plaint and produced no other evidence and the respondent/defendant produced six D.Ws. who stated that the vendor had offered the land in question for sale to the plaintiff at the same price through a Panchayat but he had refused to purchase it and the suit was decreed. The District Judge concurred the finding of the Trial Court but the High Court accepted the revision and reversed the findings of both the Courts below. The Hon'ble Supreme Court dismissed the petition for special leave to appeal with the following observations:‑‑‑ "This Court has itself observed in Baqri's case that waiver by conduct is consistent with the principle of foreclosure of the right of pre- emption as envisaged by section 19 of the Act. It would be noticed that the law has itself provided a procedure through sections 19 and 20 of the Pre- emption Act whereby the right of pre‑emption can be foreclosed even before the sale takes place. It cannot, therefore, be urged that such a right cannot be waived at all till such time as it comes into existence i.e., till after the vendor has sold the land in question to the vendee. Pre‑emption being a predatory right in nature, we are of the view that Courts should place a broad and beneficial interpretation on the aforementioned sections and the principle of waiver arising therefrom, rather than trying to whittle down through hypertechnical arguments, the claim of the defendant‑vendee that the pre- emptor who was associated with the sale proceedings or had taken part in the auction, had waived his right to purchase it either by refusing to buy it at the price at which the land was offered to him or even by refraining from bidding the same (if not higher) price than the offered by the highest bidder at an auction. 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 pre -emptors 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 ore prevailing at the time of the transaction. As a matter of tact, we have come across cases where the father sells land and his son files a suit for pre‑emotion, 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 com0 forward and tender the highest bid at an auction rather than wait till the transaction is completed and thereafter, spend 20 years of his life in litigation and incur huge expenditure which was in many cases even mere 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. "

14. Further the D.W.1 Bashir Ahmad admits in the cross‑examination that the plaintiff was present but he had not signed the Registered sale‑deed. D. W .2 stated that Sher Muhammad vendor had asked the plaintiff to purchase the suit land but he refused. The vendor did not appear as a witness which fact itself is sufficient to prove that had he appeared, he would not have supported the case of the defendant.

15. In the light of above discussion, the learned lower Appellate Court could not appreciate the evidence on record and the law on the point whereby there has occurred gross miscarriage of justice. As such, this revision petition is allowed, impugned judgment and decree, dated 10‑4‑1988 passed by the learned Additional District Judge Multan is set aside and the judgment and decree of the learned Trial Court, dated 12‑4‑1986 is maintained with no order as to costs. The petitioner/plaintiff shall deposit the decretal amount after deduction of 1/5th already deposited, within thirty days. Q.M.H./M.A.K./F‑92/L Revision allowed.