1998 PLP 473 (SCMR)

MUKHTAR AH.MAD JUNEJO, J.

Leave to appeal is sought against the judgment dated 7-2-1993 delivered by a learned Division Bench of the Lahore High Court in Regular First Appeal No.27 of 1986/BWP.

2. Petitioners Abdul Majeed and others were vendees of suit property by virtue of a sale-deed dated 10-1-1980 which was registered on 15-1-1980. Respondent Raja Mukhtar Ali filed Suit No.20 of 1981 against the petitioners pre-empting sale of suit property to them on the grounds that he had right of pre emption superior to that of the petitioners to purchase the suit property, that all the vendors were related to him as against the vendees/petitioners who were outsiders and that he had right of was (sic) through the suit land. The suit was contested by the petitioners who in their written statement took preliminary objection that purchase of the property by them at the instance and with consent of the respondent, who had lost his right of pre-emption, if he had the same, by his conduct and action. The petitioners also took the point that they had spent certain amount on development of the suit land and had incurred expenses on registration etc., besides having paid fees of the District Council. The petitioners also claimed to have installed tubewell at the suit land by spending Rs.14,

000. Another ground taken was that the suit property was purchased with foreign capital and it was not subject to law of pre-emption.

3. After settling the issues and recording the evidence, the learned Senior Civil Judge, Bahawalpur, under his judgment and decree dated 8-2-1986, decreed the suit in favour of the respondent on payment of Rs.9,80,757 including sale price of Rs.8,41,

718. In view of valuation of the suit, the appeal was preferred in the High Court where the same was dismissed under the impugned judgment. Hence this petition.

4. Sardar Muhammad Akram, learned counsel for the petitioners argued that the petitioners had led sufficient evidence to establish that the respondent had undertaken not to file suit for pre-empting sale of the suit land in favour of the petitioners, if the sale agreement in respect of purchase of land from his brother Rana Iftikhar Ali was not implemented. The learned counsel for the petitioners took us through the evidence of Barkat Ullah D.W.4, Rashid Ahmed D.W.5, Nasir Ahmed D.W.6 and Manzoor Ahmed D.W.8 to carry his point. One of the issues framed by the Court to cover the objection raised by the petitioners, reads as below:-- "Whether the plaintiff has waived his right of pre-emption and he is estopped by his act and conduct from bringing this suit? OPD." Dealing with said issue, the trial Court made analytical appraisement of the evidence and observed as below:-- "I have given my anxious consideration to what was brought on record and addressed in this behalf and relied on by the learned counsel for the parties. The plaintiff who could not tolerate the agreement to sell the land described in D-6 of his brother Raja Iftikhar Ali why should he like the sale by his other collaterals of the suit land in favour of the vendees."

6. While discarding the evidence adduced by the petitioners on the point at issue, the trial Court took view as follows:-- "Therefore, in view of the statement of D.Ws., regarding the time of relinquishment, I can safely say that these statements have to be taken into consideration with great care and caution particularly when all the participants of the assembly knitted with close relationship 'except D. W.6 who is also a relative are not neutral witnesses."

7. The trial Court found .evidence of the petitioners not inspiring confidence and the aforesaid issue was decided against them. In the High Court the petitioners challenged finding by the trial Court on aforesaid issue No.1 only regarding waiver of right of pre-emption by the respondent. For determining aforesaid issue, the High Court reviewed the entire evidence led by the parties on the said issue and did not find any wrong with the finding recorded by the Court below.

8. The learned counsel for the petitioners could not reply a Court question to the effect as to why the respondent would give up his right to exercise his right of pre-emption in respect of the suit land when he could not tolerate sale of another piece of land by his brother Raja Iftikhar Ali under the agreement Exh. D-6. The respondent is not shown to have derived any benefit out of his so called assurance that he would not pre-empt sale of the suit land in favour of the petitioners. In our view, the two Courts below have rightly discarded evidence of the petitioners on said issue for cogent reasons. The learned counsel for the petitioners has failed to persuade us to grant leave to appeal. Consequently this petition stands dismissed. A.A/A-1286/S Leave refused.