ZUBDA-TUL-HUSSAIN, J. - The suit property which was a shop having been purchased by the respondent, Muhammad Akram, from one Abdul Rashid for an amount of Rs. 50,000/- through a registered, sale-deed dated 2.10.2000, the petitioner brought a suit for pre-emption on the basis of contiguity of his shop. Contesting the suit the respondent denied the superior right of pre-emption of the petitioner and pleaded that the sale had taken place with the active knowledge and participation of the Petitioner/plaintiff for which he also failed to perform the requisite demands under the law of pre-emption before the institution of the suit. He also maintained that the plaintiff/petitioner had no cause of action and the suit being for partial pre-emption was liable to be dismissed on this score as well with special costs under Section 35-A of the C.P.C.
2. After trial of the suit the objections of the respondent regarding cause of action, partial pre- emption of the suit, waiver on the part of the petitioner and superiority of right of pre-emption were decided against the respondent whereas the petitioner was non-suited on two scores, namely, that he had failed to properly perform, Talab-i- Muwathibat' and had also acted in a manner by participation in the deal of the sale which amounted to waiver of his right of pre-emption. The appeal filed by the petitioner against the dismissal of the suit also failed. Hence, this revision petition seeking the setting aside of the judgments and decrees of the learned lower Courts and praying for the decretal of the suit.
3. As already stated, the suit was dismissed because of the alleged participation of the petitioner in the sale proceedings amounting to the waiver of the right of preemption and for his failure to Perform Talab-i-Muwathibat' in accordance with law of pre-emption. The evidence of the parties on both these issues primarily consists of oral averments of the parties and their witnesses. The question of waiver has been decided mainly with reference to the residence of the vendee and the plaintiff/petitioner in the same premises and the relation inter se they had. It was held by the learned Trial Court that the plaintiff/petitioner was present at the time of the sale transaction.
4. The relationship between the. Parties and the factum of their residence almost in the same premises is not disputed but the mere fact of this relationship and residence by itself could not lead to irresistible conclusion that the petitioner had participated in the sale proceedings and had also acquiesced his right of pre-emption, It is well settled that even if a person is present in a transaction of the sale that may not essentially mean that he has given up or waived his right of pre-emption. The waiver has to be proved specifically and In positive terms. Similarly no presumption can be drawn in favour of such waiver merely or the basis of joint residence of the vendee and the pre-emptor. It has been observed by the learned Trial Court that the presence of the plaintiff/petitioner at the time of the settlement of the sale has been denied by him. The contention of the learned counsel for the petitioner that the learned Trial Court as well 2009 as the learned Appellate Court in this behalf proceeded merely on the basis of assumptions and presumptions is not without force, In order to properly appreciate and understand the mind of the learned Trial Court the relevant portion of the judgment where the presence of the petitioner at the time of execution of the sale-deed has been mentioned may be reproduced with benefit:- "Evidence available on the file, the facts of joint residence and the defendant's claim that plaintiff was also present at the time of execution of this sale-deed, even despite plaintiff's denial in this regard, give support from the facts that plaintiff was allegedly . Informed as soon as thereafter, the execution of sale. Since evidence of P.W.5 has also been held as not reliable one, therefore, under these circumstances, it can safely be held that either plaintiff was present at the' time of execution of this sale-deed, in view of admitted joint residence, or at least he was not informed by P.W.5 at 2;00 p.m. On the same date soon after the execution of the sale-deed."
5. A simple perusal of the aforesaid observations v leads to the conclusion that the findings of the learned Trial. Court are simply presumptive, It presumed the participation of the petitioner in the proceedings of settlement of the sale because he had joint residence with the vendee/defendant and the sale was settled at the same place of the residence.
If P.W.5 could not prove 'Talab-i-Muwathibat', it could not essentially mean that the plaintiff had the knowledge of the sale because of his presence at his residence and in the transaction of sale, It has repeatedly been held by the superior Courts of this country that mere presence of a pre- emptor/plaintiff at the time. When the bargain was struck would not be enough to draw an inference in the acquiescence of sale or waiver of right of pre-emption. The same principle was upheld by the Hon'ble Supreme Court of Pakistan in the case of Abdul Rashid v. Mst. Bashiran and others (NLR 1996 Civil 425) and Jam Pari v. Muhammad Abdullah (NLR 1992 SCJ 245). It is also important that the alleged participation of the petitioner was at a stage when the sale had not yet actually taken place. Even if the contention of the respondent regarding the presence of the petitioner at his residence and in the negotiation for the settlement of the sale is accepted it cannot adversely affect the right of pre-emption because no person can assume to have a right of pre-emption until a sale actually takes place. Mere presence of a person at the time of negotiation for sale cannot constitute an estoppel. As held in the case of Baqri, and. Four others v. Salehoon and three others (PLD 1972 SC 133) until a sale actually takes place no person can assume to have a right of pre-emption which is not a right in property though it is a vested statutory right. Same is the position in the present case that even if the story as narrated by the respondent is accepted it was a matter of pre-mature presence because the sale had not yet actually taken place at that time.' It was quite later that the sale was accomplished, It was further observed in the said judgment that failure of a person entitled to pre-empt to out bid the purchaser would not amount to. Waiver. Although the question of out bidding is not relevant to the facts of the present case yet the ratio of the judgment is on all form of the case in hand to the extent of the circumstances in which the waiver is claimed by the respondent/defendant. In the present case there is an absolute denial on the part of the petitioner to have notice of or participation in the sale whereas in cases where the simple presence of a plaintiff/pre-emptor is established or it is shown that he had the previous notice of the sale, the circumstances cannot operate as an estoppel or depriving pre- emptor/plaintiff of his right to claim pre-emption after the sale has actually taken place, In this behalf reliance can be placed on Muhammad Askari v. Rehmatullah and others (AIR 1927 Allahabad 548).
6. I am thus of the considered opinion that there was no tangible evidence to actually show that the petitioner had acquiesced in the sale or had waived his right of preemption. The findings of the learned lower Courts on this issue are, therefore, reversed.
7. So far as the performance of 'Talab-i- Muwathibat' by the plaintiff/petitioner is concerned it may be observed that the assertion of such a -demand has to be positive and has thus to be established by affirmative and unimpeachable evidence. To show that immediately on attaining the knowledge of the sale the petitioner pronounced his intention to. Pre-empt the same he relied upon the statement of one Ashiq Hussain, P.W.5 and reiterated the same averments in his on statement as P.W.6, It had been stated by P.W.5 that he had gone to the Tehsil Office in search of one Ashraf whom he needed in relation to some electrical requirement and while did hot find Ashraf in the Tehsil Office he met the respondent there who told him about .The purchase of the shop whereafter on his going back he met the petitioner at his shop and told him the factum of sale and the plaintiff/petitioner immediately said that he would pre-empt the sale explaining the averment he had stated that he had in fact gone to the Medical Store where he remained employed and the shop of the petitioner being in the nearby met him in that sequence. The learned Trial Court has explicitly and in detail analyzed the averments of P.W.5 and it rightly came to the conclusion that P.W.5 having left the job from the medical store years ago, had no occasion nor did explain it, to go there when he had not found or met the said Muhammad Ashraf in the Tehsil Office he had occasion to divert himself to the shop of the petitioner. Additionally it is also important that on the same occasion of the impugned sale instead of one in fact two sales had taken place though both were independent of each other but neither P.W.5 had any knowledge of the other sale nor he claimed that the vendee told him of it. It was surely quite unnatural that the vendee would disclose the factum of one sale and withhold the information of other one from P.W.5. Reasons and the circumstances explained and relied upon by the learned lower Courts in this behalf certainly tend to show that the statement of P.W.5 could not be relied upon for the purposes of performance of Talab-i- Muwathibat' by the plaintiff/petitioner/pre-emptor. The averments of the plaint are also insufficient to lend enough support to the evidence produced by him through P.W.5. As already observed, Talab-i-Muwathibat' is a fact which as to be proved by positive evidence. Such Talab cannot be presumed of based on the basis of shaky evidence which does not inspire confidence. The finding of the learned Trial Court and those given by the learned Appellate Court which unfolding the judgment in relation to the failure of the petitioner to perform "Talb-i-Muwathibat" are unexceptionable. The same, are therefore, maintained.
8. It may also be noticed that the circumstances in which Muhammad Ashiq, P.W.5 has claimed his presence in the Tehsil Office and then his arrival at the shop of the petitioner do not co-relate with the natural course of events. The circumstances narrated by him lead to conclude that in ordinary state of affairs he should not have been in the Tehsil Office where and when he professed to have been. By his on showing the arrival of P.W.5 in the Tehsil Office and then especially on the shop of the petitioner was simply by chance, In such a situation, it cannot be safe to rely upon his depositions.
9, For what has been held above viz. That the plaintiff/pre-emptor/petitioner failed to prove that he has performed the requirement of 'Talab-i-Muwathibat', the suit was rightly dismissed. Resultantly, the civil revision is also without force which is dismissed with costs.