2004 PLP 638 (MLD)

Mustaqim v. Sher Bahadur PLD 1962 W.P. Peshawar 14 ref. Malik Shahzad Ahmad Khan for Petitioner. Mujeeb-ur-Rehman Kiani for Respondents. This revision petition pertains to a pre-emption suit filed by the respondent before this Court. It pertains to about 3 Kanals and 16 Marlas of land located in village Whali Bala in District Chakwal, the details of which are provided in the text of the plaint. Mr. Subha Sadiq Khan, the learned Senior- Civil Judge, Chakwal, after holding that the plaintiff was the Shafi Shareek and Shafi Jar and therefore, had the superior right of pre-emption and while also upholding that the conditions of the Talbs having been fulfiled, dismissed the suit on the ground of waiver. Because, according to the defendant's side, the property in question had been offered firstly to the plaintiff and on his refusal had been sold. In this connection, the verbal evidence of two witnesses of the defendant (D.W.2 and D.W.3) were produced. When the matter was taken in appeal, the learned District Judge, Chakwal (Mr. Muhammad Mehmood Chaudhry) set aside these findings vide his judgment dated 16-10-2001. Before the learned District Judge cross-objections were also filed by the petitioner but these cross -objections were rejected. The relevant excerpt from the findings of the learned District Judge is re-produced below in extenso:-- "As concerned the findings of learned trial Court upon Issue No.2, learned trial Court has already held that appellant-plaintiff is vested with superior right of pre-emption, so I have to see as to whether, appellant-plaintiff ever waived of his right of pre emption. At the very outset, I may mention here that a Court of law has to frame issues arising out of pleadings of the parties. After framing of issue, evidence has to be led. In case there is no issue, then there is no need for adducing evidence relating to the same. In the case in hand, no issue whatsoever relating to waiver was framed. I may also mention here that to prove waiver, it is always the duty of respondent-defendant to produce sufficient convincing evidence, which may go to show that prior to sale, vendor offered a per-emptor to purchase the suit land and it was not agreed. Let us see as to whether in the case in hand, statements of D. W.1, D. W.2 and D. W.3 are quite sufficient to prove the same. In the written statement, it is simply submitted that appellant-plaintiff was requested to purchase the suit-land but it was refused by him. No date, place etc., has been mentioned wherein, appellant-plaintiff was requested to purchase the suit-land. Plaintiff, Farrukh Imtiaz has submitted in plain words that for the first time, he came to know about the sale on 2-5-1996. He was subjected to cross-examination. He submitted that beside Azam, nobody told him about the sale. He denied this suggestion that prior to sale, Akram, Azam Baig and Mirza Qazi came to him and requested him to purchase the suit-land. He denied this suggestion that he was requested to purchase the suit-land and it was refused by him. P.W.2, also in cross-examination submitted that he came to know about the sale from the vendee. He was never suggested that prior to sale in dispute, plaintiff was ever offered to purchase the suit-land. P. W.1 admitted in cross-examination that in the year 1996, Sattar Cheema proceeded for Hajj. He admitted that mutation was sanctioned in the absence of Sattar Cheema. Sattar as D. W.2, in cross-examination, has admitted that when he proceeded to plaintiff, by that time, sale had not taken place. In this way, simple statements of D.W.1, D.W.2 and D.W.3 are not sufficient enough to prove that prior to sale, appellant-plaintiff was ever requested to purchase the suit-land. I may also mention here that suit-land was sold out by Chan Rehman. Chan Rehman has not been produced as a witness. He was the best person to say that prior to sale in dispute, he requested the plaintiff to purchase the suit-land. Simple statements of D.W.1, D.W.2 and D.W.3 that plaintiff was requested to purchase the suit-land are not sufficient enough to constitute a waiver. Fact remains that sale in dispute took place on 17-4-1996. Registered A.D. notice was issued on 6-5-1996 i.e. just within 20 days and it does not appeal to reasons that if earlier, appellant-plaintiff has refused to purchase the suit-land, then why within 20 days he became so active to request the defendant to accept his superior right. All these factors go to show that appellant-plaintiff was never requested to purchase the suit-land and he never waived of his superior right of pre emption. This being so, learned trial Court was not right in coming to this conclusion that appellant-plaintiff ever waived of his superior right. In this regard, findings of learned trial Court are unwarranted in law and the same are accordingly reversed." Mere oral statements by some witnesses showing that a pre emptor had knowledge of sale do not create relinquishment of a right as more is needed in this respect. Obviously, a vendor even if he had offered the land in question at a relevant time and which was not accepted by a pre-emptor for certain reasons, then may change his mind subsequently, when his liquidity permits and opt for the same land. So nothing can be said to be permanent in this respect until it is established that there was an absolute refusal. So we have to look for a conduct clearly indicating a deliberate abandonment of the right. In this connection, I am fortified by the following rulings: (1) Abaid-ur-Rehman and others v. Mehmood and others (1999 SCMR 201); (2) AIRI 1937 Lah. 504; and (3) Jam Pari v. Muhammad Abdullah (1992 SCMR I 786). , In the case Baqri and 4 others v. Salehon and 3 others (PLD 1972 SC 133) the rule laid down was that the right of pre-emption could be waived before the actual sale either by express refusal to purchase the property or by a clear conduct on the part of the plaintiff showing that he was not interested in the purchase of the property. The situation was compared to the principle of foreclosure as envisaged by the Punjab Pre emption Act of 1930. In the case of Mustaqim v. Sher Bahadur (PLD 1962 W.P. Peshawar 14), waiver in matters of pre-emption was defined as follows: "Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of positive act or relinquishment of conduct such as would warrant an inference of relinquishment of the right. To deprive a person of any legal right there must be clear and cogent evidence on record justifying that course. One and the same person may possess' two separate character, one private, and the' other representative of the rights of others, and a representation made by him in one character is not binding on him in the other. In other words, acts done by a person in a representative character do not create an estoppel when a claim, is made by him in his personal capacity." The decision of the learned District Judge which is impugned before this Court seems to follow the principle enunciated by the case law referred to above. There was no issue on the question of waiver nor any evidence has been specifically led on this point. Under the circumstances, taking help from two witnesses of the defendant side was not enough for the learned Senior Civil Judge who dismissed the suit of the plaintiff on ground of waiver. The respondent having already established his right of pre-emption and his locus standi as a Shafi Jar and Shafi Shareek, this Court agrees with the findings of the learned District Judge and dismisses this civil revision. There is no order as to costs since the judgments of the Courts below were at variance. W.A.M./M-2507/L Revision dismissed.