' MAULVI ANWARUL HAQ, J.---Vide registered sale-deed, dated 10-9-1978 the respondents Nos.1 to 4 purchased the suit-land, mentioned in the plaint, for a consideration of Rs.3,00,000. On 8-9-1979 the appellant filed a suit for possession of the suit-land by pre-emption. He claimed to be a collateral of the vendor, namely, Ishfaq Khan and also an owner of the estate. According to him, the land had actually been sold for Rs.1,80,000. I may note here that respondent No.5 also filed a similar suit claiming to be an owner of the estate. Both the suits were contested by the vendees- respondents. One of the objections raised by them was that both the said preemptors were present at the time of sale and had refused to purchase the land and consequently the right of pre-emption has extinguished. Inter alia, following issue No.5 was framed in the consolidated suits:-- "(5) Whether both the pre-emptors were present at the time of sale and they have waived their right of preemption? OPD."
' Evidence of the parties was recorded. Vide consolidated judgment and decree, dated 28-10-1985 the learned trial Court passed a first decree in favour of the appellant directing him to deposit Rs.3,76,500 on or before 28-11-1985 failing which the suit was to be dismissed and the suit of respondent No.5 was to be decreed on the same terms subject to deposit before 28-12-1985. The vendee-respondent filed a first appeal which was allowed by learned District Judge, Vehari, on 1-7- 1987 who found Issue No.5 in favour of the vendees and dismissed both the .Suits. Only the appellant has filed this R.S.A. To question the said judgment and decree of the learned District Judge.
2. Learned counsel for the appellant relying on the case of Baqri and 4 others v. Salehon and 3 others (PLD 1972 SC 133) urges that, in the first instance, no reliable evidence was led in support of the said issue and consequently the evidence has been misread by the learned District Judge, and in the second mere presence at the time of sale and refusal to purchase for the reason of absence of funds would not constitute the estoppel or waiver of right of pre-emption. Learned counsel for the vendees, on the other hand, relies on the cases of Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403), Mst. Wazir Begum and others v. Sajjad Ahmed and others (2002 M LD 193) and Muhammad Irshad Khan v. Muhammad Khan and another (1981 CLC 203) to urge that in the said circumstances, it was correctly held by the learned District Judge that the appellant has waived his rights.
3. I have gone through the records of the learned Courts below, with the assistance of the learned counsel for the parties. It will be noted that the only point being raised before me is the findings recorded by the learned District Judge on the said Issue No.5. I will deem it appropriate to reproduce here the relevant portion of the written statement of the vendees to the suit filed by the petitioner. It is contained in preliminary objection No .3 : {{URDU TEXT}}
4. Novi Muhammad Waris respondent No.4 appeared as D.W. I. He stated that the negotiations for the sale were conducted at the house of Ishafq Khan vendor and at that time nine persons including the two preemptors were present. It was then stated that the two pre-emptors arranged the sale. They persuaded the vendees that the land is being sold and they should purchase it. They replied that they are strangers and the pre-emptors should purchase the land as they are the owners of the estate. Muhammad Iqbal replied that he has no money to purchase the land while the other pre-emptor stated that he already owned so much land and was affected by Land Reforms. The second day the sale was registered. Now in his cross-examination, he stated that two pre-emptors themselves took them along to the house of the vendor in a Jeep and they had gone to the house from Ghala Mandi and nine persons were present in the Jeep and 10th was the Driver.
They had left from the shop of Rao Abdul Shakoor. (This person is a brother of the witness). The marginal witnesses of the sale-deed were present in the negotiations. Abdul Latif marginal witness is a Clerk of Haji Hanif in the Ghala Mandi. He was sitting by chance in the shop of brother of the witness and started insisting that he be taken along for the negotiations. Abdul Rehman is a resident of the Mohallah. He was present in the shop as he had to take some money from his brother. He does not know as to how much money was due. Be that as it may, Abdul Rehman was asked by the witness to accompany him for the negotiations. When asked as to why the negRtiations were not concluded in the said shop? He replied that there was a rush and it was decided that the matters be settled in some peaceful place. He admitted that Iqbal is a collateral of the vendor. D.W.2 is Abdul Rehman. Now unlike the D.W.1, he stated in the cross-examination, that he was taken along by Waris and the pre-emptors to the house of Ishfaq Khan. Now Abdul Latif D.W.3 states that on the said day it was Waris who called him to the shop of his brother. They remained at the shop for about one or 1-1/2 hours and then they proceeded to the house of Ishfaq Khan vendor.
5. Now I may note here that Ishfaq Khan vendor has himself appeared as P.W.1 to state the relationship with Muhammad Iqbal and that he is the vendor. He was cross-examined at length but not a single question was put to him to the effect that the two pre-emptors were present at the time of negotiations or the registration of the sale.
6. Now so far as the said case of Mst. Wazir Begum and others is concerned, it is apparent that a latter judgment of the Hon'ble Supreme Court of Pakistan in the case of Jam Pari v. Muhammad Abdullah (1992 SCM R 786) was not brought to his Lordship's notice while the case of Muhammad Irshad Khan was decided on the basis of the facts and circumstances of the said case.
7. Now both the said judgments i.e. One being relied upon by the learned counsel for the appellant and the case of Naseer Ahmad being relied upon by the learned counsel for the respondents came up for consideration in the said case of Jam Pari. Their Lordships reproduced the relevant portion of the judgment in Naseer Ahmad's case at page 791 of the report. Thereafter, the peculiar aspects of the said case were noted and then it was observed as follows at page 792 of the report:-- "We may say with respect that despite the generality of the expression, not the whole law, on the subject of waiver was intended to be enunciated thereby. As stated earlier, waiver being a question of fact has got to be decided on proof of such fact by the evidence in each case. Relinquishment of right is not to be inferred readily and there should be positive evidence to induce the Court to hold that the respondent intentionally wanted to forego his right. In Kidar Nath's case, waiver was sought to be proved by the evidence led by the vendee showing that the plaintiff actively negotiated the sale; that he sold bricks used for construction of a well in the land in dispute; and watched construction of the building thereon without any demur. The Division Bench of the High Court, after examining the evidence, expressed the view that:- ' To deprive a person of any legal right that he possesses, there must be clear and cogent evidence on the record justifying that course and the mere oral statements of a few witnesses, deposing to certain circumstances from which it may be possible to infer that the prospective pre-emptor had knowledge of the sale, would not be enough to prove that he had positively relinquished the enforcement of his right.
' The quality of evidence before us is not different from the one which the learned Judges of the High Court had to deal with."
8. Now it will be seen that evidence of a general nature has been led. The witnesses who were to prove the actual sale price paid at the time of sale were made to make false statements in the witness-box and they were negated by Waris D.W himself. The evidence, the criteria whereof has been laid down in the said Jam Pari's case while relying upon the Division Bench judgment of this Court has not been fulfilled. The learned District Judge has accordingly committed an error of law while misreading the evidence on record and proceeded to non-suit the appellant. This R.S.A. Is accordingly allowed. The impugned judgment and decree, dated 1-7-1987 passed by the learned District Judge, Vehari, is set aside and the one passed by the learned trial Court on 18-10-1985 decreeing the suit of the appellant is restored. No orders as to costs.
9. The records of the learned Courts below be remitted back immediately.