P L D 1985 Lahore 552 (PLP)

Qaim Din v. Said Ahmad and another P L D 1967 Lah. 1171 ; Natha Singh and others v. Sundar Ningh and others A I R 1926 Lah. 10 and Ghulam Muhammad and others v. Karam Dad and others P L D 1983 1ah. 231. ref. Baqri and 4 others v. Salehon and 3 others P L D 1972 S C 133 ref. Jari Ullah Khan for Petitioner. JUDGMENT Record of the pre-emption suit filed against the petitioners was summoned to verify the contention of the learned counsel that the respondent-preemptor had not paid the requisite court-fee despite an opportunity for the purpose provided to him by the learned trial Judge. The same was received and perused with the assistance of the learned counsel who did not point out any previous order passed for the purpose and, in fact, there is no such order on the record. The question of court-fee was considered by the trial Court only in its final judgment, dated 10-111984.

2. Learned counsel, however, argued that the Courts below have erred in not giving effect to the plea of waiver of right of pre-emption, raised against the respondent. He submitted that the land in suit, and also an Ahata, was offered by the vendor for sale through a proclamation made on a loudspeaker in the mosque and even though the respondent purchased the Ahata, yet, he not only did not evince any interest in purchasing the land in dispute but also specifically declined to purchase it. I find that the plea of waiver was not clearly raised in these terms in the written statement. In para 4 thereof, after denying the relevant para. of the plaint, it is stated that the plaintiff was present at the time of the bargain which was struck after publically proclaiming it and that the plaintiff was aware of the bargain for which he was consulted before the registered sale but he refused to exercise his right. This plea was sought to be supported in the evidence on two counts, namely, that the sale was made after proclaiming the intention thereabout through a loudspeaker in the mosque and that an Ahata was also offered for sale with the land in suit, whereof the plaintiff purchased the Ahata but refused to purchase the land in suit.

3. Contention of the learned counsel has not impressc,d me. Waiver is never a question of pure law and the evidence led by the petitioners has been disbelieved by the two Courts below for adequate reasons. The plea On the point, as noticed above, was not raised with any precision in the written statement and there is no documentary evidence brought forth regarding the sale of Ahata. Rather, the witnesses on the point produced by the petitioners have not been able to state even the price for which the Ahata may have been sold. Moreover, there is no reliable evidence produced in support of the contention, which has been sought to be proved through such witnesses as are not difficult to be procured. The two Courts below have rightly refused to accept their evidence to be sufficient for the purpose. In Kidar Nath and others v. Bagh Singh (A I R 1937 Lah. 504) a Division Bench of this Court held : "To deprive a person of any legal right that he possesses, there must be clear and cogent evidence on record justifying that course and the mere oral statements of a few witnesses deposing to certain circumstances from which it may be possible to infer that the prospective pre-emptor bad knowledge of the sale would not be enough to prove that he positively relinquished the enforcement of his right." The witnesses produced by the petitioners failed to carry conviction with the two Courts below and it is riot for this Court to enter upon a reappraisal of the evidence because there is no jurisdictional defect of the nature of non-reading or misreading of evidence pointed out by the learned counsel. Even if the assertion about proclamation may be correct, I do not see how can the petitioners base the plea of waiver B thereon with any success because there is not even an assertion made to the effect that the proposed sale was proclaimed to be intended to be made for any specified amount. Requirement to specifically mention the amount for which the intended sale may be made, was highlighted in the case Qaim Din v. Said Ahmad and another (P L D 1967 Lah. 1171) by following, among others, a Division Bench judgment of this Court in the case of Natha Singh and others v. Sundar Singh and others (A I R 1926 Lab. 10) wherein it was held : "Where the vendor has offered property to the pre-emptor at a price higher than that ultimately accepted by him from vendee, the preemptor is not estopped from asserting his right by reason of his refusal to buy the property." Such also is the ratio of the judgment in Ghulam Muhammad and others v. Karam Dad and others (P L D 1983 Lab. 231).

4. Again, the proclamation of the intended sale, even if it may have been made as alleged, coupled even with the plaintiff's inaction, is not an adequate basis for inferring abandonment of his legal right. Estoppel and waiver may arise from positive acts but not from mere omissions, unless a duty to act is enjoined by law. I am not aware of any law which may have obliged the respondent plaintiff to act in consequence of the alleged proclamation and none has been pointed out by the learned counsel. It appears that the plaintiff did not act unwisely in staying C away from the arena so that he may not enter into competitive bidding to unduly raise the price. He was within his rights to have waited for the price to be settled so as to enable him to decide as to whether it would be worthwhile to get the land for such a price. Learned Additional District Judge has correctly repelled the plea of waiver on the authority of Baqri and 4 others v. Salehon and 3 others (P L D 1972 S C 133) and Ghulam Muhammad's case (ibid). Contention of the learned counsel has no merit and the same is repelled for all the foregoing reasons.

5. There is no force in the Civil Revision which is accordingly dismissed in limine. A. A.??? Revision dismissed. Qaim Din v. Said Ahmad and another P L D 1967 Lah. 1171 ; Natha Singh and others v. Sundar Ningh and others A I R 1926 Lah. 10 and Ghulam Muhammad and others v. Karam Dad and others P L D 1983 1ah. 231. ref. Baqri and 4 others v. Salehon and 3 others P L D 1972 S C 133 ref. Jari Ullah Khan for Petitioner. Record of the pre-emption suit filed against the petitioners was summoned to verify the contention of the learned counsel that the respondent-preemptor had not paid the requisite court-fee despite an opportunity for the purpose provided to him by the learned trial Judge. The same was received and perused with the assistance of the learned counsel who did not point out any previous order passed for the purpose and, in fact, there is no such order on the record. The question of court-fee was considered by the trial Court only in its final judgment, dated 10-111984.

2. Learned counsel, however, argued that the Courts below have erred in not giving effect to the plea of waiver of right of pre-emption, raised against the respondent. He submitted that the land in suit, and also an Ahata, was offered by the vendor for sale through a proclamation made on a loudspeaker in the mosque and even though the respondent purchased the Ahata, yet, he not only did not evince any interest in purchasing the land in dispute but also specifically declined to purchase it. I find that the plea of waiver was not clearly raised in these terms in the written statement. In para 4 thereof, after denying the relevant para. of the plaint, it is stated that the plaintiff was present at the time of the bargain which was struck after publically proclaiming it and that the plaintiff was aware of the bargain for which he was consulted before the registered sale but he refused to exercise his right. This plea was sought to be supported in the evidence on two counts, namely, that the sale was made after proclaiming the intention thereabout through a loudspeaker in the mosque and that an Ahata was also offered for sale with the land in suit, whereof the plaintiff purchased the Ahata but refused to purchase the land in suit.

3. Contention of the learned counsel has not impressc,d me. Waiver is never a question of pure law and the evidence led by the petitioners has been disbelieved by the two Courts below for adequate reasons. The plea On the point, as noticed above, was not raised with any precision in the written statement and there is no documentary evidence brought forth regarding the sale of Ahata. Rather, the witnesses on the point produced by the petitioners have not been able to state even the price for which the Ahata may have been sold. Moreover, there is no reliable evidence produced in support of the contention, which has been sought to be proved through such witnesses as are not difficult to be procured. The two Courts below have rightly refused to accept their evidence to be sufficient for the purpose. In Kidar Nath and others v. Bagh Singh (A I R 1937 Lah. 504) a Division Bench of this Court held : "To deprive a person of any legal right that he possesses, there must be clear and cogent evidence on record justifying that course and the mere oral statements of a few witnesses deposing to certain circumstances from which it may be possible to infer that the prospective pre-emptor bad knowledge of the sale would not be enough to prove that he positively relinquished the enforcement of his right." The witnesses produced by the petitioners failed to carry conviction with the two Courts below and it is riot for this Court to enter upon a reappraisal of the evidence because there is no jurisdictional defect of the nature of non-reading or misreading of evidence pointed out by the learned counsel. Even if the assertion about proclamation may be correct, I do not see how can the petitioners base the plea of waiver B thereon with any success because there is not even an assertion made to the effect that the proposed sale was proclaimed to be intended to be made for any specified amount. Requirement to specifically mention the amount for which the intended sale may be made, was highlighted in the case Qaim Din v. Said Ahmad and another (P L D 1967 Lah. 1171) by following, among others, a Division Bench judgment of this Court in the case of Natha Singh and others v. Sundar Singh and others (A I R 1926 Lab. 10) wherein it was held : "Where the vendor has offered property to the pre-emptor at a price higher than that ultimately accepted by him from vendee, the preemptor is not estopped from asserting his right by reason of his refusal to buy the property." Such also is the ratio of the judgment in Ghulam Muhammad and others v. Karam Dad and others (P L D 1983 Lab. 231).

4. Again, the proclamation of the intended sale, even if it may have been made as alleged, coupled even with the plaintiff's inaction, is not an adequate basis for inferring abandonment of his legal right. Estoppel and waiver may arise from positive acts but not from mere omissions, unless a duty to act is enjoined by law. I am not aware of any law which may have obliged the respondent plaintiff to act in consequence of the alleged proclamation and none has been pointed out by the learned counsel. It appears that the plaintiff did not act unwisely in staying C away from the arena so that he may not enter into competitive bidding to unduly raise the price. He was within his rights to have waited for the price to be settled so as to enable him to decide as to whether it would be worthwhile to get the land for such a price. Learned Additional District Judge has correctly repelled the plea of waiver on the authority of Baqri and 4 others v. Salehon and 3 others (P L D 1972 S C 133) and Ghulam Muhammad's case (ibid). Contention of the learned counsel has no merit and the same is repelled for all the foregoing reasons.

5. There is no force in the Civil Revision which is accordingly dismissed in limine. A. A.??? Revision dismissed.