Waiver and Acquiescence

2012 MLD 1156 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 6, 14, 18 & 19Suit for pre-emptionWaiver and acquiescenceScope

Both the Trial Court and Appellate Court below dismissed suit filed by the plaintiff/pre-emptor on the ground of acquiescence and waiver, but High Court decreed the suit

Counsel for pre-emptor had contended that vendor had offered the plaintiff to purchase the land, but he refused to purchase the same; and that after refusal he could not turn around and file suit for pre-emption

Contentions had no force as oral evidence that a mere offer was made to the plaintiff by the vendor that he wanted to sell the land to him and he refused, could not constitute waiver, as notice under S.18 of Azad Jammu and Kashmir Prior Purchase Act, 1993, was mandatory

When any person wanted to sell any agricultural land or village immovable property in respect of which any person had right of prior purchase, a notice to sell such land would be given through court of competent jurisdiction

Said notice must be in accordance with provisions of O.V, C.P.C.

Before entering into definite contract, vendor should have issued notice to sell property against a definite price

Said notice would contain the details of title, property proposed to be sold and the price at which he wanted to sell the same

If after receipt of notice, the pre-emptor would fail to respond, he would be deemed to have waived the right of pre-emption

Mere presence of plaintiff/pre-emptor at the time of sale, when bargain was struck, would not prove acquiescence in the sale

Defendants had failed to prove the alleged waiver

Plaintiff having not waived his right of pre-emption, Trial Court and Appellate Courts had recorded the findings against the law.