' KHILJI ARIF HUSSAIN, J.--- This appeal, as of right, is directed against the judgment and decree dated 4-5-2001 passed by learned Single Judge in Chamber, of the Lahore High Court, Lahore, allowing R.S.A. No,96 of 1990, filed by the respondents/plaintiffs, setting aside the judgment and decree dated 5-3-1990 passed by learned Additional District Judge, Sheikhupura, and restoring that of dated 13-1-1979, passed by the learned trial Court.
2. Brief facts of case to decide the appeal are that the appellants/ respondent/vendees purchased land admeasuring 248 Kanals and 9 Marlas, situated in Mauza Kaloke, Tehsil and District Sheikhupura, from the vendor, Maula Dad, (since deceased), through a registered sale-deed dated 29-12-1972, against total sale consideration of Rs,1,00,000 (one lac). Ghulam Hussain and Manzoor Hussain, respondents/plaintiffs, filed a pre-emption suit in the Court of Senior Civil Judge, Sheikhupura, claiming their superior right over the suit-land qua the appellants/ respondents/vendees, being son and grandson, respectively, of the vendor. The appellants/respondents/vendees, in their written statements, while denying various allegations levelled in the memo of plaint, inter alia, averred that the preemptors/plaintiffs, namely, Ghulam Hussain and Manzoor Hussain, had no connection or relationship with the vendor, and prayed that the preemptors be estopped by their conduct to file the suit.
3. The vendor, Maula Dad, also filed an application under Order I, rule 10, C.P.C. , in the Court of Senior Civil Judge, Sheikhupura, for his impleadment as a party in the suit, averring that respondents/ plaintiffs Ghulam Hussain or Manzoor Hussain had no relationship of son and grandson, respectively, with him. The application was duly supported by an affidavit. No counter- affidavit refuting the said averments made by the vendor in his application under Order 1 Rule 10, C.P.C., was filed by the respondents/plaintiffs. The said application, with the consent of the respondents, was allowed on 18-9-1974.
4. The vendor then filed written statement reiterating his denial of relationship of son and grandson with respondents/plaintiffs Ghulam Hussain and Manzoor Hussain.
5. One Ghulam Sarwar also filed a pre-emption suit claiming him to be the son of said Maula Dad, the vendor. Both the suits filed by Ghulam Hussain and Manzoor Hussain, respondents, (Suit No,8631/I of 1973) and that of Ghulam Sarwar (Suit No,853/I of 1973) were consolidated.
6. On the basis of the pleadings of the parties, learned trial Court framed 13 issues and, after recording the evidence adduce before it, by judgment dated 13-1-1979, passed a decree for possession through preemption of the suit-land in favour of respondents/plaintiffs Ghulam Hussain and Manzoor Hussain on payment of sale price of Rs,100,000 with costs, with direction to the preemptors to deposit the sale price, less 1/5th if already paid on or before 15-4-1979, failing which their suit shall stand dismissed with costs. However, the suit of rival pre-emptor Ghulam Sarwar was dismissed.
7. Feeling aggrieved, the appellants/respondents/vendees filed appeal and the same was dismissed by learned Additional District Judge, Sheikhupura vide his judgment and decree dated 25-11-1987.
8. The appellants/respondents/vendees, then filed Appeal No,198 of 1987 before the Lahore High Court, Lahore, which was allowed on 10-4-1991 and the matter was remanded to the appellate Court with direction to decide the same after taking into consideration the entire documentary evidence.
9. On remand, the appeal was heard by a learned Additional District Judge, Sheikhupura, who, vide judgment and decree dated 5-3-1990, maintained the finding of the learned trial Court on issue No,6 but reversed the finding of the learned trial Court on issue No,
1. Consequently, the appeal allowed and suit of the respondents/plaintiffs was dismissed.
10. Aggrieved by the judgment of the appellate Court, respondents/plaintiffs filed a second appeal before the Lahore High Court, Lahore. The learned Single Judge, in Chamber, after hearing the pa ties, by judgment dated 4-5-200(sic), impugned herein, accepted the appeal as stated and mentioned in para 1 above.
11. Heard Mr. Gulzarin Kiyani, Senior Advocate Supreme Court along with Mr. Saeed-ur-Rehman Farrukh, Advocate Supreme Court for the appellants, and Mr. Qazi Muhammad Saleem, Advocate Supreme Court along with Ghulam Rasool, Advocate Supreme Court.
12. Mr. Gulzarin Kiyani, Senior Advocate Supreme Court for the appellants, after taking us through the evidence and referring to various documents on record, vehemently argued that the respondents/plaintiffs failed to prove that they are son and grandson of the vendor. The vendor in his application under Order I, rule 10, C.P.C. In the written statement, in his statement, on oath, and as well as in other proceeding, categorically stated that the respondents/plaintiffs had no such relationship with him. It was argued by the learned Advocate that the appeal filed by the respondents/plaintiffs before the High Court, the appellants/respondents had filed an application under Order XLI, rule 2, C.P.C. Praying therein that they be notified that findings on the issue of waiver will also be challenged by them at the time of arguments in the R.S.A. But learned High Court did not give any findings on issue No,6 "whether the plaintiffs/respondents are estopped to bring the suit and decide the appeal by recording the findings on issue No,1 that "whether the plaintiffs/respondents had only superior right of pre-emption". Learned Advocate further argued that respondent Ghulam Hussain was present at the time of registration of sale-deed in favour of the appellants/respondents/vendees and thus waived his right of pre-emption. In support of his contention, learned Advocate relied upon the evidence of P.W.2 Mubarak Bibi, daughter of Maula Dad, vendor, and argued that despite registration of the sale-deed on 28-12-1972 in their presence, respondents/plaintiffs did not take any step to claim their right of preemption and with mala fide to deprive the appellants/respondents from the land which they had purchased, filed suit for pre- emption. The respondents/plaintiffs by their conduct, even if they had any right of pre-emption, had waived the same and as such pre-emption suit was liable to be dismissed. To augment the contentions reliance was placed on the cases of Naseer Ahmed v. Arshad Ahmad PLD 1984 SC 403 and Abdul Hameed and others v. Muzamil Haq and others 2005 SCM R 895.
13. Conversely, Qazi Muhammad Saleem, Advocate Supreme Court for the respondents/plaintiffs, in his reply argued that the learned trial Court, after taking into consideration the material on record, gave findings of fact on the basis of Exh. D24, which a copy of the written statement was a forged document, therefore, the same should be of no avail to the appellants/vendees. In response to the contention of learned advocate for the appellants regarding waiver of pre-emption right, learned Advocate argued that the burden to prove said waiver heavily lies upon the appellants/respondents which they failed to discharge. In support of his contentions, learned Advocate relied upon the case of Haji Sultan (deceased) through his legal representatives v. Nasim Raza and 6 others 1996 SCM R 1729, Abdul Rashid v. Bashiran and another 1996 SCM R 808, Muhammad Din through Legal Heirs v. Nazir Muhammad through Legal Heirs 2004 SCM R 1394, Nazar Hussain and 2 others v. Mst. Khurshid Bibi and others 2002 SCM R 49 and Baqri and 4 others v.
Salehon and 3 others PLD 1972 SC 133.
14. We have taken into consideration the respective arguments of learned counsel for the parties and scanned the record very carefully.
15. At the very outset, we enquired from learned counsel for the parties that since the issue pertaining to waiver, the High Court has not recorded any findings, whether it would be appropriate to remand the matter to High Court to decide the issue first or instead of remanding the matter the issue can be decided on the basis of the material available on record. Both the learned counsel requested that it would be appropriate if instead of remanding the matter to the High Court to record finding on the issue of waiver, this Court on the basis of material available on record, decides the same.
16. We, therefore, would like to discuss issue No,6 regarding waiver firstly. Admittedly, vendor Maula Dad by registered sale-deed dated 28-12-1972, conveyed the land in question in favour of the appellants/respondents. The possession was handed over to them just after five days of the registration of the sale-deed, the respondents/ plaintiffs were residing along with vendor under the same roof in the same village where the land in question is situated and knew about the sale of the land in question. It is not the case of the respondents/plaintiffs that they came to know about the sale of the land in question in favour of the appellants/respondents/vendees just before filing of the suit.
17. The respondents'/plaintiffs' witness Mubarak Bibi, in her statement during cross-examination, admitted that respondent Ghulam Hussain was present at the time of registration of the sale-deed and all documents were prepared and executed under the supervision of respondent Ghulam Hussain since vendor Maula Dad was a person of advance age.
18. The respondents/plaintiffs during the cross-examination admitted that the vendor, after sale of the land in question, purchased the land in Kot Hadoo and, admittedly, after demise of the vendor, the respondents/plaintiffs, by way of a compromise between the legal heirs of the vendor, inherited share from said land.
19. The question of waiver in a case of pre-emption came for consideration before this Court in the case of Abdul Hameed and others v. Muzamil Haq and others 2005 SCM R 895 authored by one of us (Mr. Justice Tassaduq Hussain Jillani), wherein while considering the issue on identical question of facts it was held that:-- "(16) The afore-referred circumstances indicate that the respondent/ plaintiff all along knew about the sale transaction, that he never asked the vendor, his father to sell the land to him, that there was a complete understanding between the two so much so that even the sale price was deposited in the account of the respondent/plaintiff, that the suit was filed with connivance of the vendor and that it was not merely a case of implied waiver but also collusion. The reliance of respondents learned counsel on Abaidur Rehman v. Mehmood and others 1999 SCM R 201 would of no help as in the said case in unlike the case in hand the pre-emptor had stated that he could not purchase the property as he was unable to arrange the money. This Court was of the view that this conduct did not prove waiver and the judgment of the High Court was upheld. The circumstances of instant case reflect the same trend of exercise of a right of preemption by the individuals in connivance with the vendors which has been deprecated by this Court in Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 wherein at page 406 it was observed as under:--- "(7) It is universally accepted that pre-emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object (as appears to be the intention in the present case) to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for preemption, which cannot but lead one to assume that there was collusion between the two. We feel that such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend 20 years of his life in litigation and incur huge expenditure which was in many cases even more than the actual price of the land or the property at the time of the sale or situation. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. The latter does not, therefore, deserve relief through Courts of law."
20. In the case of Haji Sultan Ahmad v. Nasim Raza and 6 others 1996 SCM R 1729 this Court held that right of pre-emption can be waived before the actual sale either by express refusal to purchase the property or by a clear conduct on the part of the plaintiff, showing that he is not interested in the purchase of the property.
21. We have examined the case-law relied upon by the learned Advocate for the respondents/plaintiffs. The cited precedents are clearly distinguishable from the facts and the ratio therein is not attracted in the circumstances which have given rise to this case.
22. The principle laid down in the case of Abdul Hameed (supra) is applicable to the facts of this case. The respondents/plaintiffs despite having knowledge about the transaction had never asked the vendor, who, according to them, was their father/grandfather, to sell the land to them nor they notified the appellants/respondents about their intention to claim their right of pre-emption. The respondents'/plaintiffs' own witness stated, on oath, that at the time for registration of sale-deed, the respondent was present, which statement is binding upon the respondents having been made by the witness produced by them. The respondents/ plaintiffs did not claim their right of pre- emption at the time of registration of the sale-deed or immediately thereafter, and allow the appellants/respondents to take possession of the land in question and develop the same.
23. For the foregoing reasons, findings on issue No,6 recorded by IG the High Court, appellate Court and trial Court are set aside.
24. As regards issue No,1, though material is available on the record, on the basis of which, one can say that respondents have no superior right of pre-emption, particularly in view of the statement of Maula Dad, vendor, that respondent/plaintiff Ghulam Hussain was not his son and, at the time of marriage of the vendor with respondent's mother, he was of four years of age as well as in vendor's application filed under Order I, rule 10, C.P.C. Supported by his personal affidavit, he denied the said relationship. However, we would not like to make any comments on this issue to avoid any serious consequence of the same.
25. We have been informed that after the compromise, the property of late Maula Dad, vendor,, was distributed amongst his legal heirs by way of a compromise and the respondents were also given their due share.
26. In this aspect of the matter, listed appeal is allowed, finding on issue No,6 is reversed and the suit for pre-emption filed by the respondents/plaintiffs is dismissed. No order as to costs.