SYED MANZOOR HUSSAIN GILLANI, J.---This appeal with leave of the Court is filed against the judgment and decree of the High Court dated 22-1-2004, whereby the judgments and decrees passed by District Judge Bhimber on 27-3-2001 and Senior Civil Judge Bhimber on 30-9-2000 are upheld.
2. A suit based on the right of prior purchase for land measuring 48 Kanals 15 Marlas 1-1/2 Sarsahi comprising Khewat Nos. 58/10 and 109 situate in Village Kot Tehsil Bhimber was filed by Rehmat Ali, predecessor of appellants against a sale-deed executed by Muhammad Alam and others on 7-7- 1986, for a consideration of Rs, 2,20,000.
3. The facts necessary for the perception of the case are that two suits for possession based on the right of prior purchase were filed against the sale-deed executed on 7-7-1986, through which land measuring 48 Kanals 15 Marlas and 1-1/2 Sarsahi was transferred. One by Rehmat Ali and the other by Manzoor Ahmed on 24-7-1986 and 22-9-1986, respectively. The suit filed by Rehmat Ali was dismissed on 30-8-1987 for non-compliance of the. Court order, but was restored and remanded by the High Court through its judgment dated 27-1-1990. In the suit filed by Manzoor Ahmed the parties reached to a compromise in consequence of which a compromise decree was passed in favour of Manzoor Ahmed by Sub-Judge Bhimber on 5-3-1990 subject to payment of Rs,2,28, 380 within 90 days. This amount was paid out of Court, and the. Court was accordingly informed in consequence of which preliminary decree was confirmed on 27-5-1990. The appellants challenged this decree before the High Court, which was set aside, but on appeal, this Court reversed the order passed by the High Court directing that both the suits of pre-emption filed by Rehmat Ali and Manzoor Ahmed be consolidated and tried together. Consequently both the suits were consolidated, tried and decided together by Senior Civil Judge on 30-9-2000 passing a decree in favour. Of Manzoor Ahmed for a consideration of Rs,2,20,000 besides other expenses to be paid within one month failing which the appellants Nazar Hussain and others were declared entitled to the pre-emption decree subject to the same conditions after the expiry of one month. District Judge Bhimber upheld the decree on 27-3-2001 and High Court on 22-1-2004, hence this appeal with leave of the Court.
4. Mr. Muhammad Rafique Dar, the learned. Advocate appearing for the appellants, challenged the legality of the order of High Court and the Courts below on two grounds:-
(i) that decree holder waived his right of pre-emption for having participated in the sale-deed; and
(ii) that the suit filed by him was collusive.
5. The learned counsel contended that the Courts below have misread the evidence on record and have drawn a wrong conclusion from the record. According to him the suit was filed through Manzoor Ahmed in collusion with the vendee and vendors so as to deprive Rehmat Ali of his legal right or pre-emption. Citing the instance of collusion the learned counsel contended that the opposite party engaged only one Advocate namely Haji Muhammad Yousaf, to conduct all their cases and that the compromise decree was maneuvered by the opposite party in connivance with each other and that the pre-emption money fixed in the final compromise decree dated 27-5- 1990, which was to be paid in the Court, was not paid in the Court as directed by the Court but a receipt was placed before the Court by the opposite party for having received the money from Manzoor Ahmed outside the Court. He also contended that Manzoor Ahmed is son of Muhammad Alam one of the vendors, which implies that he was associated and in agreement for sale, thus waiving his right. Besides above the learned counsel for the appellants contended that in a joint written statement filed by vendors and vendees in the suit filed by Manzoor Ahmed it is admitted that suit filed by Manzoor Ahmed is collusive and for their benefit who are bearing all the expenses of the suit. He contended that a decree should have been passed in favour of appellants on the basis of this admission which did not require any other proof. He placed reliance upon a case reported as Khan Muhammad Khan v. Ali Muhammad and others (PLD 1985 SC (AJ&K) 91) to support his contentions. According to the learned advocate, these are the instances of waiver and collusion.
6. On the other hand, Raja Hassan Akhtar, the learned Advocate appearing for the respondents, defended the judgments and decrees passed by the Courts below contending that the concurrent findings of facts cannot be disturbed by the Supreme Court. He contended that consent decree in favour of Manzoor Ahmed was challenged by the appellants for being collusive, not the suit filed by Manzoor Ahmed. He further contended that instances of collusion relied upon by the learned counsel for the appellants were of the period before the case was remanded from this Court, hence if any instance was assumed to be there before remand, that cannot be read, as the trial of the suit and its pleadings shall be deemed to have commenced from the stage when the suits were consolidated under the orders of this Court.
7. We have considered the arguments advanced at bar in the light of record and the case law cited by the learned Advocates for the parties.
8. First question which requires determination is as to whether Manzoor Ahmed decree holder had waived his right by participating in execution of sale-deed. The waiver is a question of fact which has to be proved by cogent evidence. It cannot be assumed by inferences. Though all the three Courts below have concurrently found that wavier of his right by Manzoor Ahmed is not proved, hence there was no requirement for going through the statements of witnesses produced by the parties. However to meet the ends of justice, we have gone through the statements of Manzoor Ahmed, Fazal Hussain, Rehmat Ali, Allah Ditta, Muzaffar Hussain and Muhammad Sharif. We did not find any word uttered by them suggesting that Manzoor Ahmed had ever consented to the sale- deed or had any collusive arrangement with the vendee. The superior Courts of Pakistan have consistently maintained that the waiver is an intentional relinquishment of known right and unless, there is cogent evidence reflecting conduct of the party clearly indicating abandonment of his right, he cannot be said to have deliberately foregone his right. Waiver has to be proved by evidence or by conduct of the party making a Court to believe that the conduct of the party clearly suggested his voluntary participation in execution of sale-deed and thus relinquishment of his right due to his conduct. There is nothing on record to suggest it. Waiver is a question of fact and the concurrent findings by all the Courts below on this point are conclusive proof of its absence, hence there is no justification to interfere in the concurrent findings of fact recorded by three Courts below.
9. The superior Courts of the country have not accepted even presence of pre-emptor at the time of sale to. Be enough to draw an inference of acquiescence to the sale or relinquishment of his preemptive right. It is held in the case reported as Hafiz Hussain Muhammad and 2 others v. Abdul Hameed and 2 others (PLD 1982 SC 159), that waiver being a conscious relinquishment or surrender of right, mere presence at the time of sale never to be considered sufficient to amount to waiver.
Similarly it is held in a case titled Jam Pari v. Muhammad Abdullah (1992 SCM R 786), that waiver being a question of fact has to be decided on proof of such fact by the evidence in each case.
Relinquishment of right cannot be inferred by mere presence of preemptor at the time of bargain unless there is cogent evidence reflecting the persons conduct of abandonment of his right.
Presumptions and inferences cannot overtake facts nor can be substitute of proof.
10. As far as the collusion is concerned, it is also a question of fact to be proved by consistent conduct of a party leaving no reason to believe that, party was not in league or in conspiracy with other for some evil purpose or to defeat the right of a person. It has also to be proved by the party who alleges it. It is held in a case reported as Sabhas Chandra Das Mushib v. Ganga Prosad Das Mushib and others (AIR 1967 SC 878), that the word collusion means a secret agreement for illegal purpose or a conspiracy being done with the object of depriving the other with evil design. In the case reported as Indo Allied Industries Ltd. v. Punjab National Bank Ltd. (AIR 1970 Allahabad 108), it is held as under:-- "Collusion is a strong term. It had been defined as: "A deceitful agreement between two or more persons for some evil purpose such as to defraud a third person of his right." Collusion may be either apparent and patent or, what is more common, secret and covered by an apparent show of honesty. In either case, collusion implies a community of purpose and intention between parties colluding.
11. There is no such evidence on record suggesting that pre-emptor was in-collusion with any of the parties with ulterior motive to defeat the right of the appellants. It is admitted that pre-emptor being son of one of the vendors had a preferential right to purchase the land, thus a competent pre-emptor, it does not imply that he was in league with anybody to deprive the vendee of his right. The instances cited to suggest collusion by the learned Advocate for the respondents are that Muhammad Yousaf was engaged as Advocate by all the opposite parties. It may be professionally unethical to have the power of attorney on behalf of pre-emptor as well as of transferring party but it does not amount to collusion. It can at the most be a sorry state of affairs for the advocate who accepted the brief, pre-emptor cannot be blamed nor can any adverse inference be drawn on this ground. Moreover the powers of attorney in favour Of Muhammad Yousaf were of the period before the case was remanded from the Supreme Court. The parties thereafter engaged their separate advocates, hence this also cannot be assumed as a collusion.
The other instance cited is that the vendees accepted the consideration money from the pre- emptor outside the Court while money was to be deposited in the Court. The consideration money was in any case to be paid to the vendee whether through Court or directly. Mode of payment hardly matters as long as payment is accepted. So no inference on this ground can be drawn for believing collusion.
12. As for the arguments that it was admitted in written statements filed by defendants in the suit filed by Manzoor Ahmed, that it is collusive and thus a decree should have been passed in favour of appellants, it hardly constitutes admission against successful pre-emptor, unless he himself admits or is proved by those who allege the collusion. Collusion was alleged by appellants, it was for them to prove who have failed in proving it. The authorities referred on this point do not apply in the circumstances of the present case. In view of above, finding no force in this appeal, it is hereby dismissed with costs.