' TASSADUQ HUSSAIN JILLANI, J.--- This appeal is directed against the judgment dated 21-3-2001 vide which respondents' Regular Second Appeal No,192 of 1988 was allowed by learned Lahore High Court and the judgment and decree of learned trial Court dated 27-1-1981 decreeing respondents suit was restored.
2. Facts in brief are that the land subject-matter of this appeal (485 'Canals, 19 Marlas) situated in Village Chhajooke Tehsil and District Gujranwala) was purchased by the appellant vide Mutation No,158, dated 1-1-1974. This sale was pre-empted by the respondent No,1 Muzamil Haq, the son of the vendor. The suit was contested and in terms of divergent pleas following issues were framed:--
(1) Whether the suit has been correctly valued for the purpose of court-fee and jurisdiction? If not, what is the correct valuation for both the said purpose?
(2) Whether the plaintiff is estopped by his conduct to institute this suit? OPD
(3) Whether the list of the presumptive legal heirs of the plaintiff is incomplete and incorrect? If so, to what effect? OPD
(4) Whether the plaintiff has got superior right of pre-emption as compared to the vendees? OPP
(5) Whether the sum of Rs,249-49/38 was fixed in good faith or actually paid as the sale price of the suit-land? OPD
(6) If Issue No,5 is not proved then what was the market value of the suit property at the time of its sale?
(7) Whether the defendants have affected improvements on the property in suit? If so, to what extent and with what effect? OPD
(8) Relief.
3. Since the burden of proof v. As primarily on the appellants/ defendants, therefore, they were asked to lead evidence in the first instance. They examined following witnesses:--
(1) D.W.1 Ghulam Mustafa. He is scribe of Exh.D.1 an agreement to sell between the appellants and vendor dated 19-6-1973. In terms of the said agreement part payment was made and the date for registration was indicated as 26-12-1973, which was later on extended to 8-1-1974.
(2) D.W.2 is Muhammad Arshad.
(3) D. W.3 is Feroz Din. He stated that the land was on lease with the appellants.
(4) D.W.4 is Malik Nazar Hussain who was also lessee of the land subject-matter of the suit.
(5) D.W.5 is Abad All who is the vendor himself who acknowledged having signed Exh.D.2, which is lease deed with regard to the suit-land, which was pre-empted.
(6) D.W.6 is Muhammad Rafique. He is a brick kiln owner and stated that the appellant purchased from his brick kiln.
(7) D.W.7 is Shaukat Ali who is a witness with regard to the improvement of the land.
(8) D.W.8 is Mehr Ghulam Haider who is owner of Nursery and stated that appellant had purchased plants from his nursery for plantation in the land in dispute.
(9) D.W.9 is Muhammad Jamil Bhatti, Manager National Industrial Cooperative Bank Gujranwala who proved Exh.D.3 to the effect that the sale price of the suit-land was deposited in respondent/ defendant's Account No,623SB.
(10) D.W.10 is Riasat Ali who is one of the vendees in terms of mutation dated 1-1-1974 but later on sold the said land to the appellants. He stated that a pay order to the tune of Rs,2,09,000 was got prepared by the vendees in favor of the plaintiff/ respondent and the same was deposited in his account. He added that the plaintiff was fully involved in the transaction.
4. In rebuttal of the afore-referred evidence respondent/plaintiff appeared himself as P.W.1 who claimed superior right being son of the vendor. He refuted the suggestion that he was privy to the impugned sale and that the amount was deposited in his account.
5. The learned trial Court vide judgment and decree dated 27-1-1981 decreed the suit primarily on the basis of its findings on Issue No,4 and held that the respondent being son of the vendor has superior right. The Issue No,2 was also decided in favor of respondent/plaintiff as the Court was of the view:-- "The defendants have led the evidence that out of the sale proceeds the amount of Rs,2,90,000 was deposited in the bank account of the plaintiff by latter's father, the vendor of the suit-land let it be so, but is the conduct of the vendor and not of the plaintiff. It is particularly so when the Bank Pay Order, as deposed by defendant Riasat Ali D.W.10, was handed over to the vendor. Therefore, the issue fails."
6. This judgment and decree of trial Court was set aside by Additional District Judge who dismissed the suit vide judgment and decree, dated 27-10-1987 solely on account of its finding on Issue No,4 and held that since entries in the Khasra Girdawari indicated that the appellant/vendee was a tenant of the suit-land, therefore, he had superior right of pre-emption. The finding on issue No,2, however, was not interfered with.
7. The Regular Second Appeal filed by the respondent was allowed by the High Court through the impugned judgment, dated 21-3-2001 as the Court was of the view that "It may be pertinent to state that in Exh.D.5, the Khasra Girdawari, it is not mentioned that respondents are tenants at will; though the word "Muzareh" has been written, but interpreting this expression in the light of Exh.D.2 the document produced by the residents themselves, is clearly established that the word "Muzareh" connotes the lessees and not the tenants". The lessee was held not to have superior right of pre- emption.
8. Learned counsel for the appellants mainly made two submissions, firstly that the respondent by his own conduct had waived his right of pre-emption, that he was privy to the sale transaction, that the sale price was deposited in his account and that it was a collusive suit. Elaborating his this submission he added that the sale transaction which culminated in the mutation dated 1-1-1974 was preceded by an agreement to sell dated 17-6-1973 in terms of which part payment was made, that being son of the vendor, the plaintiff was aware of this agreement, that it stands proved on record that the final sale price was paid through a Pay Order which was deposited in the account of the respondent/plaintiff, that he utilized the same, that if he was interested to purchase the suit- land there was nothing to prevent him to express his desire to do so with his father, that he filed the suit on 3-1-1975 towards the close of period of limitation, that the cumulative effect of respondent/ plaintiff's acts and omissions clearly indicate that he merely tiled the suit so that at a latter point of time he could get back the land at the sale price notwithstanding the price hike on account of afflux of time. His second submission pertained to the scope of direct appeal before this Court.
Relying on this Courts judgment in Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 and Jasraj Indersingh v. Hemraj Multanchand AIR 1977 SC 1011, he submitted that in appeal the entire lis is before the Court and it can adjudicate upon issue/question not specifically taken in the memo. Of appeal.
10. Learned counsel for the respondent defendant the impugned judgment and made following submissions in this regard:--
(i) That the impugned sale transaction had two stages i,e, when agreement to sell Exh.D.1 dated 19- 6-1973 was executed and secondly when mutation of sale dated 1-1-1974 was entered in the Revenue Record. At both the stages there was nothing on record to indicate that respondent/plaintiff was in any manner privy to the deal, therefore, there was no question of waiver.
(ii) That the appellants have not challenged the finding of the Court on issue No,2 specifically in the grounds of appeal, that being so, this issue would not be touched by appellants' counsel during arguments.
(iii) That merely because the respondent/plaintiff is son of vendor, could not lead to a presumption that he was either aware of the transaction of sale or he could have persuaded his father not to sell the suit-land. In these circumstances his superior right cannot be defeated on hypothetical consideration. In support of the submissions he relied on Abaid-ur-Rehman and others v.
Mahmand and others 1999 SCM R 201.
11. We have gone through the impugned judgment, the evidence on record and have given anxious consideration to the submissions made.
12. Both the learned counsel have confirmed their submissions on Issue No,2 i,e, "whether the plaintiff is estopped by his conduct to institute this suit". The case of the appellants/defendants has been that respondent/plaintiff by his own conduct was not only privy to the transaction but had waived his right to pre-emption. The expression "Waiver" has been subject of judicial comment.
"Waiver" has been defined in Black's Law Dictionary, as:-- "The intention or voluntarily relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right or when one dispenses with the performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something the doing of which or the failure of forbearance to do which is inconsistent with the right, or his intention to rely upon it. The renunciation, repudiation, abandonment, or surrender of some claim, right, privilege, or of the opportunity to take advantage of some defect, irregularity, or wrong. An express or implied relinquishment of a legal right."
13. The waiver could be express or implied. The "Express waiver is the voluntary, intentional relinquishment of a known right, the implied waiver refers to a situation where one party has pursued such a course of conduct with reference to the other party as to evidence intention to waive his rights or the advantage to which he may be entitled, or where A the conduct pursued is inconsistent with any other honest intention than an intention of such waiver, provided that the other party concerned has been induced by such conduct to act upon the belief that there has been a waiver, and has incurred trouble or expense thereby". (Black's Law Dictionary).
14. The facts in the instant case do not reflect an express waiver. However, the conduct of the respondent/plaintiff does persuade the Court to infer implied waiver. It is in evidence that he was aware of the transaction, that he was intimate enough to the vendor and in the event of expression his desire to purchase the suit-land, the former would have sold it to him and that the very fact that the sale was allowed to take place and sale price was deposited in personal account of respondent/plaintiff would show that he did not choose to exercise the said option and thereby impliedly waived his right to pre-empt. D.W.9 Muhammad Jamil Bhatti is an independent witness.
He at the relevant time was serving as Manager National Industrial Cooperative Bank Gujranwala.
He candidly stated that the sale price was deposited in the account of plaintiff/petitioner bearing No,623SB. This was further corroborated by another independent witness D.W.10 Riasat Ali, who stated that a Pay Order amounting to Rs,2,90,000 was given to Abad Ali the vendor who handed it over, to his son respondent/plaintiff, that the same was deposited in latter account and that he was privy to the impugned transaction of sale. The statement of respondent/plaintiff while appearing as P.W.1 corroborated the statements of the D.Ws. In his examination-in-chief itself, he frankly stated that the sale transaction was made in his presence. Now this admission on his part is reflective of a conduct indicating that he must have waived his right and this conduct is "inconsistent with any other intention". His evasive replies were an attempt to conceal these elements of his conduct. When asked as to whether the sale price was deposited by his father in his personal account, he evaded the answer by saying that he is not aware whether sale price was deposited in his account. He however, added that his father had obtained his (plaintiff) signatures on his cheque book and that he used to draw money from the said account. Again although he denied the suggestion that the entire expenses of the filing of the suit and the court-fee were borne by his father but evaded the answer regarding "Char Padawar" and replied that he was not aware as to whether said document was prepared prior to the filing of the suit and further as to who purchased the stamps for depositing court-fee but in the same breach volunteered to add that in fact he had purchased the court-fee. In the face of the evidence led by the appellantstdefendants with regard to the circumstances indicating privity of the vendor and the respondent/preemptor with specific evidence regarding the two stages of sale transaction, i,e, the initial agreement to sell and then sale and Mutation, the deposit of the sale price in the latter's account, the factum of former's drawing the amount from the said account, no convincing evidence was led in rebuttal.
Even the vendor was not produced in rebuttal.
15. Learned counsel for the respondent attempted to contend that the very fact that the vendor appeared in support of the appellants/ defendants' claim would show that there was no privity between the father and the son. This argument has no bearing because Abad Ali the vendor (D.W.5) had been cited as a witness by the appellants/defendants in the list of witness to prove the lease deed Exh.D.2 which reflected that the said land had been given by the said Abad Ali to the appellants on lease. He had little option but to appear. However, while making the statement qua the lease deed he tried to evade the answer with clear intent not help to the defendant. He acknowledged having signed Exh.D.2 wherein the name of the appellant is mentioned as a lessee but despite that he had the temerity to say in the Court that he had given this land on lease but to whom he did not remember.
16. The afore-referred circumstances indicate that the respondent/ plaintiff all along knew about the sale transaction, that he never asked the vendor, his father to sell the land to him, that there was a complete understanding between the two so much so that even the sale price was deposited in the account of the respondent/plaintiff, that the suit was filed with connivance of the vendor and that it was not merely a case of implied waiver but also collusion. The reliance of respondents learned counsel on Abaidur Rehman v. Mehmood and others 1999 SCM R 201 would of no help as in the said case in unlike the case in hand the preemptor had stated that he could not purchase the property as he was unable to arrange the money. This Court was of the view that this conduct did, not prove waiver and the judgment of the High Court was upheld. The circumstances of the instant case reflect the same trend of exercise of a right of pre-emption by the individuals in connivance with the vendors which has been deprecated by this Court in Naseer Ahmad v. Arshad Ahmad PLD 1948 SC '403 wherein at page 406 it was observed as under:- "(7) It is universally accepted that pre-emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object (as appears to be the intention in the present case) to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for preemption which cannot but lead one to assume that there was collusion between the two. We feel that such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend 20 years of his life in litigation and incur huge expenditure which was in many cases even more than the actual price of the land or the property at the time of the sale or situation. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. The latter does not, therefore, deserve relief through Courts of law."
17. For the reasons given in the preceding paragraph the judgment of the High Court, as also the finding of the learned first Court of appeal on issue No,2 are not sustainable.
18. Coming to the objection of respondent's learned counsel that since question of waiver was not raised before the High Court and it has not been specifically urged in the memo. Of appeal before this Court, therefore the appellants' learned counsel is estopped to raise this point we feel that this objection in the facts and circumstances of this case has no force firstly because before the High Court it was the respondent No,1 who had filed the appeal and there was no occasion for the appellants to raise this issue and since the suit had been dismissed by the first Court of appeal only on Issue No,
1. The High Court were touched this issue and reversed the finding on Issue No,4.
Secondly, in terms of Order XIX, rule 5 of the Supreme Court Rules, 1980 this Court has discretion to allow an appellant to raise any ground not specified in the memo. Of appeal. The said Rule reads as under:-- "(5) The appellant shall not without the leave of the Court, rely at the hearing on any grounds not specified in his petition of appeal and the concise statement."
Thirdly there is force in the contention of appellants' learned counsel that in case of a Direct Appeal the entire lis is open before the Court. This is in line with the law laid down by this Court in The Province of East Pakistan v. Muhammad Hossain MIA PLD 1965 SC 1 and lastly we have gone through the evidence on record and we are of the view that in the peculiar facts and circumstances of this case Issue No,2 goes to the root of the entire matter and substantial justice in accord with the Constitutional mandate enshrined in Article 187 of the Constitution of Islamic Republic of Pakistan would not be possible without a proper hearing and finding on the said issue.
19. For what has been discussed above, this appeal is allowed, the impugned judgment of the High Court dated 21-3-2001, and the finding of the learned First Appellate Court dated 27-10-1987 and the judgment and decree of the trial Court dated 27-1-1981 are set aside and suit of the respondent/plaintiff is dismissed throughout with no order as to costs.