' YAHYA AFRIDI, J.--- The present revision petition is directed against the judgment and decree dated 18-1-2010 passed by the learned Additional District Judge-III, Mardan, whereby the appeal of the present respondent was accepted and the judgment and decree dated 28-72009 passed by the Civil Judge, Mardan was set aside.
2. The brief and essential facts leading to the present petition are that property measuring 2 'kanals', 3 'marlas' situated in Khasra' Nos.1101, 1035, 1086, 1104, 1105, 1084 and 1102 of Patwar' Circle Qazmi Tehsil and District Mardan ("disputed property") was purchased by the present petitioner through registered sale-deed No,980 dated 28-12-2004 ("sale-deed").
3. The present respondent, Amir Nawaz, challenged the sale of the disputed property by claiming his right of pre-emption and sought the possession of the disputed property by instituting a suit in accordance with the provisions of N.-W.F.P. Pre-emption Act, 1987 ("Act"). The present petitioner disputed the assertions made by the present respondent. Based on the contesting claims, the trial court framed ten issues. Thereafter, evidence of the parties was recorded and finally the trial court was pleased to dismiss the suit of the present respondent. Aggrieved thereof, the present respondent impugned the same in appeal, which was finally accepted and the judgment and decree passed by the trial court in favour of the present petitioner was set aside. Hence, the present petitioner.
4. The learned counsel for the petitioner vehemently argued that the present respondent had not fulfilled the essential requirements of the 'talbs' as prescribed under section 13 of the Act: that though the 'Talb-eIshhad' was mentioned in the plaint but while recording the testimony of the respondent, the same was not asserted during his evidence; that the respondent had knowledge of the sale prior to the actual registration of the sale-deed; that the original notice of 'Talb-e-Ishhad' was not produced in evidence; that the respondent had waived his rights of preemption as provided under section 15 of the Act. Reliance was placed on Akhtar Nawaz's case (2005 YLR 77) and lnayatullah's case (PLD 2006 Lahore 287).
5. The learned counsel for the respondent contended that the 'talbs' were duly proved in accordance with the provisions of the Act; the witnesses of the 'talbs' and the informer of the sale were produced in evidence to prove the essential requirements provided under section 13 of the Act; that as 'Talb-e-Ishhad' had been sent to the present petitioner, hence the same could not be produced in original, however, the same was proved through witnesses namely, Nadir (P.W.7) and Banaras (P.W.8); that there was no question of any prior knowledge of the sale; and that in case of offer of sale of disputed property, the petitioner ought to have served a notice upon the respondent as ordained under section 12 of the Act, which was not done, hence the claim of refusal by the respondent to accept the sale or purchase the same at this stage-was an afterthought.
6. The valuable arguments of the learned counsel for the parties^ heard and the available record of the case thoroughly considered.
7. In regard to the first ground of revision, this court finds that under section 31 of the Act, a person, can enforce his rights of pre- emption within a period of 120 days from the date of registration of a sale-deed. In the present case, the sale-deed was registered on 28-12-2004, while 'Talb-e- Khusumat' was made on 25-4-2005. Hence, the present suit is within the prescribed period of limitation provided under the Act.
8. As far as the stance of the petitioner that there was 'waiver' on the part of the present respondent is terms of section 15 of the Act, this court notes that the said provision reads that; "15. Waiver of the right of pre-emption.
' The right of pre-emption shall be deemed to have been waived if the pre-emptor has acquisant in the sale or has done any other act or omission or commission which amounts to waiver of the right of pre-emption."
' This court has in Waris v. Muhammad Sarwar (2009 CLC 1118) gone to the extent of holding that "waiver" in cases of pre-emption requires definite finding, which are unequivocal of clear intent of surrendering the right of pre-emption and stated that; "There is no evidence as to action of pre-emptor indicating an intention to waive the right of pre- emption in favour of the petitioner saying.
'I forgo my right of pre-emption in favour of the vendee'."
' In an earlier case titled Muhammad Nawaz v. Allah Bukhsh (1993 MLD 783) it was clearly held that; "It is established principle of law that in order to constitute estoppel or waiver, cogent evidence of action participation of the pre-emptor in the sale negotiation as well as the knowledge with regard to the price settled, is refusal to purchase the land on that price and his express relinquishment of right to pre-empt amounting to assurance to the vendee that he will not file a preemptive right, is required, to debar a pre-emptor to claim right of pre-emption by filing a suit. Refer cases of Hakim Ali v. Fazla (1986 CLC 11.83) and Hafiz Hassan Muhammad v. Abdul Hamid (PLD 1982 SC 159)".
' The august Supreme Court has in this regard in case titled Muhammad Tufail v. Ghayas Muhammad (PLD 2007 SC 26) while discussing the concept .Of 'waiver' of right of pre-emption under the Punjab Pre-emption Act, 1913 discuksed the same by stating. That; "Some positive and overt acts by the pre-emptor towards the 'completion of transaction must be brought on record in material particulaRs, Participation in a transaction consists of numerous positive acts like playing an intermediately between the vendor and the vendee; like contacting the vendor to persuade him to sell the land; like negotiating between the parties regarding the amount of transaction, so on and so forth. Not a single incident of such a nature was ever brought on record and hence the learned District Judge was not competent to hold such bald allegation as sufficient evidence towards the act of waiver."
' Earlier, the august Supreme Court of Pakistan in Ubaidur Rehman v. Muhammad (1999 SCMR 201) went to the extent of declaring that; "Even the statement of pre-emptor before the trial court that he could not purchase the property at the time of its sale as he had not money at all, did not to waiver of the pre-emption right nor such statement of pre-emptor was indicative of a conduct which could be construed as waiver of the right of preemption."
' And iii a more extensive manner, the issue of 'waiver' has been discussed by the august Supreme Court of Pakistan in the case titled Jam Pari v. Muhammad Abdullah (1992 SCMR 786) wherein it approved the decision of the Supreme Court in Bari and others v. Salehon and others (PLD 1972 SC 133) and summed up the essential ingredients of the principles of waiver and stated that; "(i) Right of pre-emption arises on sale of the property in question this is the general law.
(ii) Right of pre-emption, however, can be waived before the actual sale either by express refusal to purchase the property or by clear conduct on the part of the plaintiff; showing that he is not interested in the purchase of the property.
(iii) Mere participation in the auction for the sale of the property or failure to outbid the purchaser cannot be regarded as a waiver of the right of pre-emption."
' And thereafter approved the "ratio decedenti" laid down by the Lahore High Court in Kidar Nath v.
Bhag Singh and others (AIR 1937 Lahore 504) to the effect that; "To deprive a person of any legal right that he possesses there must be clear and cogent evidence on the record justifying the course and the mere oral statement of the court 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."
9. This court notes that under section 12 of the Act, the prospective seller can inform, through a written notice, his intention for sale of property to a person, who may have a right of pre-emption.
Therein. Thereafter, the said person, to whom the offer is made to purchase, would not be able to later seek his right of pre-emption over the sale of the said property.
' Section 12 provides that; "12. Notice of intention to sell.--- (1) Where any person proposes to sell any immovable property in respect of which a right of preemption exists, he may give notice to all such persons having such right of the parties at which he is willing to sell the property."
In the present case, a specific stance has been taken by the petitioner that the disputed property was offered to the respondent, who refused to purchase the same. For this stance, an express provision of section 12 of the Act is applicable, which requires a written notice to be served, specifying the intention to sell the disputed property on the very person, who is to be barred from seeking his right of pre-emption over the said sale. The present petitioner has not proved the said notice of offer, as envisaged under section 12 of the Act.
10. Reviewing the entire canvas of judicial proceeding, this court finds that the bar of exercising the right to seek pre-emption under the Act entails the following;
(1) 'Waiver' as provided under the Act, is required to be specific and definite actions or inactions, indicative of the true intention of the pre-emptor. Evasive actions or inactions, which do not manifest the intentions of the persons would not fulfil the requirements of section 15 of the Act.
(ii) Mere presence during the proceedings of sale of property or knowledge thereof would not constitute 'waiver' as envisaged under section 15 of the Act.
(iii) 'Waiver', under section 15 of the Act, is a more general defence than the notice of option to buy as provided under section 12 of the Act, which is taken up against the pre-emptor.
(iv) In cases where specific stance of having offered the property to a pre-emptor prior to the actual sale, the notice of offer of purchase has to be proved offer through notice as provided under section 12 of the Act.
In the circumstances, this court notes that the present petitioner has taken a specific plea of defence against the respondent not to exercise his right of pre-emption as he had been offered to purchase the disputed property, which refused by the respondent. In such a situation, the petitioner had to prove the notice as envisaged under section 12 of the Act and on failure to do so he could not rely upon the general defence of 'waiver', as provided under section 15 of the Act.
11. Now moving on the third ground of challenge taken by the present petitioner that notice of 'Talb- e-Ishhad' had not been produced in original. It is but most natural, that the original notice was sent to the present petitioner and hence the same could not be produced in evidence. In this regard, we may refer to the provisions of Article 77 of Qanun-eShahadat Order, 1984 as it provides that any document, which in itself is a notice, the same need not be proved through secondary evidence.
This Court in Haji Aurangzeb Khan v. Habib Khan (PLD 2010 Peshawar 80) seeking guidance from the ratio decedenti rendered by the august Supreme Court of Pakistan in cases titled Abdul Qayyum v. Muhammad Rafiuue (2001 SCMR 1651) and Hamidullah v. Mst.Zeenat Khatoon (2008 SCMR 1444) held that; "Any document which in itself was a notice, same need not be proved through secondary evidence."
' In view of above clear annunciation of law in the judgments of the august Supreme Court of Pakistan and this Court, the case-law cited by the learned counsel for the petitioner would not be of much avail.
12. This court is adjudicating the present petition in its revisional jurisdiction, the scope thereof as provided under section 115 of the Code of Civil Procedure, 1908. While exercising its revisional jurisdiction, this Court finds that the courts below had the jurisdiction to adjudicate upon the matter and that while exercising the said jurisdiction they applied their conscious mind to the facts of the case and rendered their concurrent findings, which are not arbitrary, capricious or out rightly absurd so as to warrant interference.
13. Accordingly, for the reasons stated hereinabove, the present revision petition is devoid of legal force and is thus dismissed.
' No order as to costs.