SYED ZAHID HUSSAIN, J.--- Judgment of the learned Additional District Judge, Sheikhupura whereby the appeal filed by the respondent was accept ed by him on 20.6.1998, has been assailed through this second appeal. It arises in the circumstances briefly stated below; Muhammad Saleem husband of Mst. Niaz Sultana, the appellant herein, had sold land measuring 23-kanal 8- marlas for consideration of Rs. 16,250/- through mutation No. 367 dated 27.11.1974 which transaction of sale was sought to be pre-empted by the appellant through a suit for possession instituted on 26.2.1975. The same was contested by the respondent, pleading inter alia that the appellant was estopped to bring any such suit as she had waived her right. Issues arising out of the pleadings of the parties were framed. The suit had successive phases reference whereto may not be necessary except to state that the vendee/respondent had filed Regular Second Appeal No. 342/80 before this Court which was accepted on 27.11.1995, by setting aside the judgment of the learned Additional District Judge Sheikhupura, the matter was remanded for decision of the appeal afresh in accordance with law. The learned appellate Court then remanded the matter to the Trial Court who vide judgment dated 17.2.1997 decreed the suit of the appellant where against the appeal preferred by the respondent was accepted vide the impugned judgment dated 20.6.1998.
2. The learned counsel for the parties are alone that it is issue No. 5 alone findings whereon are to be examined by this Court. The said issue reads like this: (5) Whether the plaintiff is estopped from brining this suit and whether she had waived her right to pre-empt the sale in dispute? OPD." The finding recorded by the Trial Court was that respondent/defendant had failed to prove the issue and was, thus, decided against him which finding, however, has been reversed by the appellate Court. The learned counsel for the appellant assails the finding recorded by the appellate Court that the respondent/defendant had failed to produce sufficient evidence in support of the said issue. It is contended that the appellate Court has misread the evidence and misconceived the legal position obtaining in the matter. Reference has been made by him to Jam Pari vs. Muhammad Abdullah (1992 SCMR 786) and Abdul Rashid vs. Bashiran and another (1996 SCMR 808). Contrarily, the learned counsel for the respondent has contended that sufficient evidence was produced by the respondent/defendant to prove that the appellant was not only present at the time of transaction but had even expressed willingness to the sale, and that the testimony of the said witnesses having remained unrebutted is to be accepted by the Court. It is contended that the relationship of the appellant as wife of the vendor cannot be ignored who was by her conduct precluded to institute the suit. Reference has been made to Muhammad Bakhsh vs. Nisar Ahmad (1985 CLC 1974), Sikandar Hayat and 4 others vs. Master Fazal Karim (PLD 1971 SC 730), Abdul Ghani and another vs. Mumtaz Hussain Aamer (1993 SCMR 2346), Mst. Manzoor Zohra vs. Muhammad Mansha & another. (NLR 1984 Civil 146) and Ch. Abdul Majeed vs. Ch. lnayat Ali and 4 others (PLD 201 Lahore 194).
3. As mentioned above, issue No. 5 of vital relevance and importance in the context of the controversy. The learned Additional District Judge in order to find out whether there was sufficient and cogent evidence produced by the respondent in support of issue No. 5, has considered and examined the evidence and relied upon the testimony of Mohammad Din (DW-1) that the appellant was present along with her husband at the time of bargain when she was asked as to whether she had any objection to the transaction and she replied in negative. Similar was the statement made by Hassan Din (DW-2), the defendant/respondent, Riaz Ahmed (Dw-4) and Ahmad Ali (Dw-5) who have been believed by the learned appellate Court as their statements were consistent on the point that the appellant was not only present at the time of bargain but was also enquired as to any objection by her to the sale. Such deposition of the witnesses produced by the respondent has remained unrebutted. Mst. Niaz Sultana the appellant appeared as Pw-1 who had admitted the factum of the marriage with Mohammad Saleem since 1964 and that they had continuously been living together. In Jam Pari vs. Muhammad Abdullah (1992 SCMR 786) and Haji Sultan Ahmad through legal heirs vs. Naeem Raza and 6 others (1996 SCMR 1729) it was observed that mere presence of the pre-emptor at the time of the bargain was not enough to draw inference of waiver of right on his part. In the present case, however, unrebutted evidence has come on the record that the appellant was particularly asked but she had expressed no desire for the purchase of the land or objection to its sale in favour of the respondent. It was observed in the precedents cited above that the right of pre-emption could be waived before the actual sale either by express refusal of purchase the property or by a clear conduct. In Muhammad Bakhsh vs. Nisar Ahmad (1985 CLC 1974) it was observed that the portion of statement which remained unchallenged in cross examination has to be accepted. It was observed that the pre-emptor was son of the vendor who had been living with his father in the same house. The view taken by the Court in that case was that the defendant/vendee had established the waiver on the part of the pre-emptor. Reversing the finding of the Courts below. The appeal was accepted and the suit was dismissed. Similar was the view taken in Abdul Ghani and another vs. Mumtaz Hussain Aamer (1993 SCMR 2346) in which again the suit for preemption brought by a son of the vendor was dismissed placing reliance on an earlier judgment in Naseer Ahmed vs. Arshad Ahmad (PLD 1984 SC 403). In Ch. Abdul Majeed vs. Ch. Inayat Ali and 4 others (PLD 2001 Lahore 194) a learned Division Bench of this Court also came to the conclusion that the pre-emptor had lost his right by his conduct due to waiver on his part. Instant in the case where a wife is the pre-emptor, to impugn the transaction of sale made by her husband. They had been living together in the same house continuously. A strong inference is discernable from the circumstances about her conduct in the matter. It is not difficult to reach the conclusion that other appreciation in the value of land prompted her to file the suit, as an after thought.
The contention of the learned counsel for the appellant that non-production of marginal witness of the agreement dated 27.10.1973 adversely reflects upon the plea of the respondent, is controverted by the learned counsel for the respondent that Nawazish Ali had died whereas the other witnesses did not appear despite having been summoned. The cumulative effect of the preponderance of the evidence on the record in the present case has correctly been appreciated by the learned appellate Court. I find no basis and justification whatsoever to reverse the finding so recorded by him as the same has due backing of the evidence on the record and the conclusion drawn are consistent with the legal position obtaining in the matter.
As a result of the above, finding no merit in the appeal, the same is dismissed. No order as to costs.