' One Muhabbat Khan had sold his 106 Kanals, 8 Marlas of land td Fateh Sher and 35 Kanals, 9 Marlas to Amir Muhammad through different sale-deeds dated 24-8-1978. Before these sale- deeds, Fateh Sher was a tenant on the said land and he filed a suit for pre-emption on the sale of land sold to respondent Amir Muhammad before the Collector, Talagang, which has been decreed on 21-8-1980 in favour of Fateh Sher. The appeal and revision of respondent Amir Muhammad against the suit has been dismissed. His Writ Petition No,433 of 1984 was also met with the same fate. However, his C.P.S.L.A. Was accepted by the Honourable Supreme Court and the case was remanded to the High Court and the High Court further remanded the case to A.C./Collector for decision afresh with the direction to determine whether Fateh Sher has waived his right of pre- emption on the land purchased by Amir Muhammad. The said Collector Talagang on the basis of evidence produced by the parties before him, has found that the petitioner Fateh Sher has been associated with the sale proceedings in favour of Amir Muhammad and this tantamounted to his consent for foreclosure of the right of pre-emption. Vide order, dated 8-9-1989, the Collector dismissed the pre-emption suit of Fateh Sher petitioner. His appeal as well as revision petition (R.O.R. No,349 of 1999) was also dismissed by the Member, (Revenue) vide order, dated 26-4-2001.
Review Petition No,299 of 2001 had also been dismissed on 17-3-2003.
2. Learned counsel for the petitioner contends that the petitioner has been non-suited by the Revenue functionaries on the ground that he has waived his right of pre-emption and that the presence of the petitioner at the time of sale would not lose his right of pre-emption. He has placed his reliance on the cases of Luqman v. Allah Diwaya and other PLD 1967 Pesh. 166 and Banga Chandra Dhu Biswa s and another v. Jagat Kishore Acharjya Chowdhuri and others AIR 1916 PC 110.
2-A. On the other hand, learned counsel for the contesting respondents vehemently opposed the arguments of the learned counsel for the petitioner by contending that two sale-deeds one in favour of Amir Muhammad measuring 35 Kanals, 9 Marlas. The other in favour of Fateh Sher measuring 106 Kanals, 8 Marlas had been registered in favour of two vendees on 24-8-1978 and the sale of the land in favour of Amir Muhammad respondent vendee was in the knowledge of the petitioner. He did not demand the purchase. Of land from the vendor Muhabat Khan and he himself has purchased the portion of land raising no objection.
3. I have heard the arguments of the learned counsel for the parties and perused the record.
4. It is an admitted fact that two sale-deeds were effected on the same date i,e, 24-8-1978 in favour of Fateh Sher and Amir Muhammad but he has not raised any objection to the sale of remaining portion made to the respondent on the same day and on the same rate. The tenant Fateh Sher after having become Zamindar lost his right of pre-emption in respect of remaining area sold to the respondent vendee Amir Muhammad as his status of tenant of the land has changed to the status of land-holder. In this context reliance can be placed to the case of Muhammad Bashir and 2 others v. Board of Revenue and 5 others 1983 CLC 930.
5. The right of principle of merger also attracted to the present case as the landlord vendor executed sale-deed in favour of tenant, changed the status of tenant and his right as tenant getting extinguished by merger of such right into ownership rights. Reliance can be placed to the case of Fazal Khan and another v. Ghulam Rabbani PLD 1983 SC 265. After purchase of land, tenants lose their status of being tenants and become owners and cannot claim that at the time of sale, they were tenants. In this context reliance can be placed to the case of Sher v. Au.Lia Khan and others NLR 1981 U.C.
615.
6. So far as, the question of waiver of right is concerned, there is concurrent findings of facts by all the three Revenue Courts, i,e, Collector, Additional Commissioner and Member, Board of Revenue and the view taken by Courts below passed on proper appreciation of evidence which cannot open to exception through the writ jurisdiction. In this context reliance can be placed to the case of Muhammad Yousaf v. Khalil Ahmad NLR 1980 SCJ 358. Question of waiver is a question of fact and the evidence arrived at by the lower Courts that preemptor has waived his right of pre-emption not open to interference by this Court. In this context reliance can be made to the case of Ali Haider Khan v. Sher Afzal Khan and others PLD 1983 SC (AJ&K)
5. It is also established in the case of Muhammad Irshad v. Muhammad Khan 1981 CLC 203 that where a person consents to a sale and takes active part in its completion, he is estopped from filing a suit for pre-emption in respect of such sale.
8. For the foregoing reasons, this revision petition being devoid of force is dismissed in limine.