The appellant brought a suit for pre-emption against the respondents regarding the land mentioned therein; the respondents contested the matter and took up the plea that at the time of the sale, it was offered to the appellant to purchase the land but he refused. Be that as it may, issues were framed; parties were put to trial and by giving positive findings on the main issues, such as superior right in favour of the appellant and upon limitation and waiver against the respondents, the suit was allowed by the learned trial Court vide judgment and decree dated 21.11.1983. Respondents preferred an appeal, which has been accepted vide judgment and decree dated 5.11.2001 and by reversing the findings on Issue No, 4 i.e regarding the waiver, the suit of the appellant stand dismissed.
2. Learned counsel for the appellant contends that the learned Appellate Court has decided the matter against the appellant on the basis of a receipt Ex.D-2, according to which, the appellant allegedly received a sum of Rs,5000/- and has waived his right of pre-emption. This document, according to him, is genuine; it was not filed alongwith the written statement; no defence was set out in the written statement about the execution of the document or the receipt of the amount of Rs,5000/- by the appellant; neither the scribe of the document Ex.D-2, nor the second marginal witness have been produced, therefore, such findings are contrary to law.
3. Learned counsel for the respondents, on the other hand, states that in the written statement, it is clearly mentioned that the suit land for its sale was offered to the appellant, but he declined: This broader plea also includes the assertion of the respondents that the amount of Rs,5000/- was received by the appellant and he executed the receipt Ex.D-2; besides, the receipt (Ex.D-2) was relied upon in the list of reliance filed along with the written statement and has been proved by one of the marginal witnesses Muhammad Rafique DW-4. Abdul Latif, DW-5 has also stated that the receipt was executed in his presence and the amount of Rs,5000/- was received by the appellant.,
4. I have heard the learned counsel for the parties. In imputing waiver to the appellant, there is a basic flaw in the defence of the respondents, as it has not been pleaded in the written statement that any amount of Rs,5000/- was received by the appellant and on account of such consideration, the appellant had waived his right, rather in the written statement, it is mentioned that the appellant refused to purchase the suit land, which evidence particularly the receipt and the statements of the respondents' witnesses are contrary to the respondents' pleadings. The issue of waiver was to be construed, proved and decided on the basis of the respondents' clear stance in their written statement and not beyond that. It is settled law that fact not pleaded in the pleadings cannot be proved through evidence. Moreover, according to the form filed by the respondents under Order 7 Rule 14, CPC, there is reference to an agreement, which allegedly was executed by the appellant along with the receipt to waive his right, but this has not been produced fin the evidence. In addition, the receipt Ex.D-2, was not filed alongwith the respondents' written statement and there is no mention of this in the form under Order 13 Rule 1 CPC. There is no justification, why the other marginal witness of Ex.D-2 was not examined. It is settled law that in order to prove the waiver, strong evidence is needed, but for the lapses mentioned above, the appellant cannot be imputed any waiver, especially in the light of the law laid down in the judgment reported as Jam Pari. us.
Muhammad Abdullah (1992 SCM R 786). Resultantly, the findings of the learned Court of appeal on the issue of waiver are reversed and the impugned judgment and decree is set aside and that of the learned trial Court is upheld. According to the appellant, the pre-emption money/sale price has already been deposited by the appellant with the learned trial Court, and therefore, no fresh order in this regard is required.