1986 PLP 2431 (MLD)

Ch. Abdul Ghani for Appellant. Date of hearing: 5th May, 1986. On 27-10-1972, Waryam son of Ghulam Muhammad respondent No.1 filed suit for possession through pre-emption against Waryam son of Majhi petitioner. The suit was resisted whereon seven issues were framed. The parties led their evidence. On the conclusion of the trial, the suit was dismissed by the learned Civil Judge, Pakpattan Sharif on 26-7-1984. Feeling aggrieved of this judgment and decree, the plaintiff /respondent filed appeal before Additional District Judge, Pakpattan Sharif which was accepted and the suit was decreed on 24-4-1986, hence this Second Appeal.

2. Before me the findings of the learned Additional District Judge on issues Nos.2 and 6 have been challenged. The issues are as under:- Issue No.2: Whether the plaintiff has waived his right of pre-emption by his own conduct? O . P. D . Issue No.6: Whether the vendee-defendant No.1 has effected any improvement on the suit land, if so, to what extent? O.P.D.

3. The learned counsel for the appellant submitted that from the statements of Mahmood D.W. 1, Muhammad Ramzan D.W.2 and Waryam appellant D.W.3, it is sufficiently proved that the pre-emptor respondent took active part in the transaction of sale and himself refused to purchase the land which amounts to waiver. The, learned counsel also submitted that the learned appellate Court has reversed the findings of the trial Court on issue No.6 without sound and cogent reasons.

4. I have considered the submissions made by the learned counsel for the appellant with care. I have not been able to persuade myself to agree with the learned counsel for the appellant. As for issue No.2, relating to the waiver of the right of pre-emption of the appellant/ plaintiff, I find that Waryam appellant D.W.3 stated:- Mahmood D.W.1 has stated:- Muhammad Ramzan D.W.2 stated:- I am of the view that evidence produced above, accepted at its face value no case of valid waiver of the right of pre-emption by the pre-emptor/respondent is made out. Since the onus of proving issue No.2 was on the appellant, therefore, it was incumbent on him to establish that he and the vendor had concluded an agreement of sale, and the pre-emptor was approached and asked to purchase the property, for the consideration for which the vendee was going to purchase the same. The waiver as generally understood is an intentional relinquishment of a known right. It may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment o the right. No hard and fast rule can be laid down as to whether a case of waiver has been made out or not. Whether the pre-emptor has waived his right depends upon the facts and circumstances of each case. However, 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 order 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. The pre-emptor will not be deemed to have waived his right when there was a more offer in general terms by vendee or even by vendor of his intention to sell the property to a stranger. Mere refusal to purchase at a higher price or making offer of purchase at a price less than the one demanded by the seller would not amount to waiver of the right of pre-emption. It is also not enough to offer property to a person entitled to pre-empt the same before an agreement to purchase at a fixed price is arrived at between the vendor and the stranger. The evidence relied upon by the appellant/ vendee does not qualify the tests laid down by the superior Courts for the proof of waiver. Issue of waiver is more or less an issue of fact. To make independent assessment of the evidence was within the jurisdiction of the lower appellate Court. The learned first appellate Court has given sound and cogent reasons in support of his decision. Issue No.6 is also an issue of fact. The learned counsel for the appellant has not been able to point out any mis-reading/ non-reading of evidence by the learned Additional District Judge. For all these reasons, I am convinced that the judgment and decree of the trial Court has rightly been set aside by the learned First Appellate Court.

5. For what has been said above, there being no merits, the appeal is dismissed in limine. H.B.T. Appeal dismissed.