' This regular second appeal has arisen out of a pre-emption suit brought by the respondents, Muhammad Khan and another, against the appellant, Muhammad Irshad Khan. The suit was resisted by the appellant inter alia OD the ground that the respondents were estopped from bringing the suit. His plea had found favour with the Civil Judge who was seized of the suit. The suit was, therefore, dismissed by the learned Civil Judge. The respondents took an appeal to an Additional District Judge who reversed the findings of the learned trial Court on the issue of estoppel and decreed the suit of the respondents. The appellant has, therefore, come up in second appeal to this Court.
2. While pleading estoppel, it was alleged by the appellant that the respondents had consented to and participated in, the transaction of the sale in dispute and that the same was finalized through their good offices and with his blessing. It was also maintained by him that the respondents were present at the time of the entry of the mutation in regard to the sale in dispute and, therefore, they were estopped from pre-empting the sale.
3. The appellant examined his attorney, Mst. Sardar Begum (D. W. 1) and also produced copy of mutation, Exh. D. 1 to substantiate his plea. It was stated by Mst. Sardar Begum that the respondents were instrumental in transacting the sale in dispute and that she had paid the sale price to them on behalf of the appellant. According to her, the respondents had to send their brother, namely, Zafar Ahmed abroad and so they wanted to raise funds for him by selling the land in question. It was also added by her that the respondents had assured that they would not file a suit for pre- emption. In addition, it was deposed by her that the mutation, in regard to the disputed sale was entered at the instance of the respondents. The report made by the Patwari while entering the mutation, copy Exh. D. 1, also reveals that the respondents had gone to the Pat wad alongwith the vendor, who is their father, and it was at their instance that the mutation was recorded. In rebuttal, the respondents had produced two witnesses, namely, Muhammad Shafi Patwari (P. W. 1) and Muhammad Khan respondent (P. W. 2). It was the said Muhammad Shafi Patwari who had entered the mutation in question. He stated that he recorded the mutation at the instance of the respondents and the vendor. On the other hand, it was denied by Muhammad Khan respondent that he was present at the time of the striking of the bargain or had gone to the Patwari to have the mutation recorded. It was, however, admitted by him that he lived alongwith his father (vendor) and as his mother had expired, he was responsible for providing meals to his father. It was also stated by him that his brother Zafar Ahmed had gone abroad.
4. The appellant's evidence regarding the active participation of the respondents in the completion of the sale in question stands corroborated by the documentary evidence which is the report of Muhammad Shall Patwari on the mutation, copy Exh. D. 1, and the testimony of the said Patwari as a witness of the respondents. The statement of Muhammad Khan respondent also, to some extent, supports the deposition of Mst. Sardar Beg urn (appellant's attorney) regarding the reason for which the respondents had arranged the bargain in dispute, namely, the raising of funds for sending their brother to some foreign country. The learned Civ;a1 Judge, therefore, appears to be right in making the following comment :- "In view of above admitted facts it is not difficult to deduce that plaintiffs must be having full knowledge of the bargain and they must be a consenting party to it as they were in want of money for sending their brother to foreign country. Had they been intending to purchase the suit land they could very well purchase the same at that very moment but it transpires that by that time they were not having any money with them and later on when their brother Zafar remitted money from foreign country, the plaintiffs were in a position to bring this suit."
' The learned Civil Judge, was "convinced" that by their conduct the respondent had "certainly waived" their right of pre-emption.
5. The finding of the learned Civil Judge was reversed by the learned Additional District Judge for the following reasons :-- "In the present case, there is nothing on the record to show that the vendor before selling the property to the present respondent had issued any notice under section 19 of the Pre-emption Act.
That being so, it cannot be presumed by any stretch of imagination that the present appellants had had the fair opportunity of purchasing the suit property. Of course there are cases in which either on account of the express refusal of the pre-emptor to purchase the property or his clear conduct which showed that he was not at all interested in the purchase of the property he is deemed to have waived his right. But where that was not the case the pre-emptor was entitled to bring a suit for pre-emption after the sale was completed. The right of pre-emption is provided by statute and it cannot be held to be waived unless by word or action. It was held in AIR 1947 Lab.
299 that where no notice had been issued by the vendor under section 19 of the Punjab Preemption Act and the vendee asked the pre-emptor whether he would object to his buying the land, to which the pre-emptor replied that he has no objection and that the vendee was at liberty to make the purchase. It was held that as the pre-emptor's reply did not affect in the present right vested in him and did not refer either directly or indirectly to the exercise or non-exercise of his future rights, it did not amount to waiver by the pre-emptor of his right of pre-emption nor did it operate as estoppel against him. Hence even if the statement of Mst. Sardar Begum is to be accepted as it is, any such assurance given by the appellants to her before the completion of the sale in question would not operate as estoppel against the appellants."
6. It was urged by the learned counsel for the appellant that while reversing the finding of the learned trial Court on the question of estoppel the learned Additional District Judge had not taken into consideration the aforementioned report of the Patwari on the mutation (copy Exh. D. 1) and his statement before the trial Court as P. W. 1 and, therefore, his judgment suffered from the defect of non-leading of evidence. He maintained that in view of the said evidence coupled with the statement of Mst. Sardar Begum (D. W. 1) it was abundantly clear that the respondents had waived their right of pre-emption and, therefore, they were not entitled to pre-empt the sale in dispute. He relied on Chaitu and Mam Chand Sons v. Mst. Niaz Begum etc. (1). Bhagat Ram v. Raghber Dial and others (2), Zahuruddin Khan v. K. B. Shahalam Khan and others (3), and Muhammad v. Raz GuI (4), to support his contention.
7. On the other hand, learned counsel for the respondents contended that there was no cogent evidence to substantiate the plea of estoppel raised by the appellant and, therefore, the learned Additional District Judge had rightly declined to affirm the finding of the learned trial Court on the relevant issue. It was further submitted by him that even if it was assumed that the respondents had not objected to the sale in dispute, it would not debar them from filing the suit for pre-emption.
He invited my attention to the cases reported as Bhagat Singh v. Hukam Singh and others (5), Layman v. Allah Diwaya and others (6), Qutub-ud-Din v. Muhammad Siddique and others (7) and Sultan v. Lt.-Col. Dost Muhammad and another (8) to support his arguments.
8. As for the authorities cited by the learned counsel for the appellant, in the case of Chaitu and Mam Chand Sons it was held by a Division Bench of the Chief Court, Punjab, that a pre-emptor is not entitled to claim property by right of pre-emption when the vendees had purchased the same at {{FOOT NOTE}}
(1) 205 P L R 1910 (2) A 1 R 1925 Lah. 57
(3) PLD 1959 Pesh. 148 (4) PLD 1972 Pesh. 146
(5) AIR 1947 Lah. 299 (6) PLD 1967 Pesh. 166
(7) PLD 1969 Lah. 418 (8) PLD 1973 Lab. 318 {{FOOT NOTE}} ' the pre-emptor's request. In Bhagat Ram's case, following opinion was expressed by a Division Bench of the Lahore High Court :- "It is quite clear that mere presence at the time of registration is not sufficient to prove acquiescence. But where, as here, we have the fact that the father of the pre-emptor had taken an active part in the negotiations, that the pre-emptor himself assisted in collecting the money and was not merely a silent spectator of the actual registration, but took an active part there also and where he has delayed as here in bringing his suit up to the last possible moment, we are of opinion that all these facts taken together point conclusively to such acquiescence throughout as must have influenced the vendee in concluding the transaction."
' In Zahiruddin Khan's case it was held by the erstwhile High Court of West Pakistan (Peshawar Bench) that if a person negotiates the sale in favour of the vendee, he will forfeit his right of pre- emption absolutely and forever. In the case of Muhammad it was held by the Peshawar High Court that where a person takes part in the completion of a sale, he loses his right to pre-empt the sale.
In that case one of the pre-emptors, namely, Lai. Khan was found to have waived his right of pre- emption in respect of a sale in favour of Raz Gul. The relevant observations read as under :- "It may be remarked at this stage that Lal Khan appearing as witness had denied having reported the sale and thumb-impressing the roznamcha thereto with respect to the sale by Nur Khan in favour of Raz Gul. The learned Appellate Court (District Judge, Derajat) therefore, felt the necessity of the examination of the Patwari The Patwari Halqa in his deposition before the Appellate Court stated that the report with respect to the impugned sale was entered by him in the roznamcha (copy Exh. P. W. 1/1) on 7-8-1964, at the instance of Lal Khan, who signed the entry and that this roznamcha report is the basis of Mutation No, 5569 entered on 7-8-1964. The learned Appellate Court, in view of the statement of the Patwari, held that since Lal Khan had taken part in the completion of the sale, he had, therefore, lost his right of pre-emption according to the provisions of section 21 of the N.-W. F. P. Pre-emption Act, 1950."
9. Now, I take up the cases cited by the learned counsel for the respondents. In the case of Bhagat Singh it was held by a learned Judge of the Lahore High Court that where before purchasing certain land the vendee had asked the pre-emptor whether he would object to his purchasing the land to which the pre-emptor replied that he had no objection and that he (vendee) was at liberty to make the purchase, his reply did not amount to waiver by the pre-emptor. In the case of Luqman it was held by the High Court of Peshawar that mere attestation of deed embodying a sale did not preclude a person from pre-empting the sale. The cases of Qutubuddin and Sultan do not relate to pre-emption matters but deal with the general principle of estoppel. 'Therefore, they are of little help to the respondents.
10. Besides the authorities cited at the Bar, which have been discussed above, I have laid hands on two other precedent cases having bearing on the point in issue. They are reported as Muhammad Ali Khondaker v. Haji Maksed Ali Khan (1) and Sikandar Hayat and 4 others v. Master Fazal Karim (2).
In the case of Muhammad Ali Khondaker it was ruled that a person consenting to transfer of property loses his right of pre-emption. While taking this view the High Court of Dacca relied on Ram Dawan Shukul v. Ram Shakul Surat and others (3), Rikhi Rani and another v. Dhanpat Rai and another (4), Ranjit Singh v. Bhawati Singh and another (5), Syed Muhammad Yamin v. Babu Ganesh Prasad Singh and another (6) and Maruti Mangaji v. Kisan Ukaroa and another (7). In the case of Sikandar Hayat and 4 others it was held that the pre-emptor was estopped from bringing suit because he himself actively participated in transaction of sale sought to be pre-empted and was present at the time of the execution and registration of conveyance deed.
11. What emerges from the foregoing discussion is that if a person consents to a sale and takes active part in its completion, he is estopped A from filing a suit for pre-emption in respect of such sale.
12. Before proceeding to find out as to whether the respondents in the present case were estopped from filing the suit for pre-emption, it is necessary to determine as to what was precisely done or said by them in relation to the sale in question. According to Mst. Sardar Begum (D. W. 1), who is only witness examined by the appellant, the respondents had not only consented to the sale in dispute but had taken active part in its completion and entry in the register of mutations. It was also deposed by her that the respondents had assured that the sale would not be pre-empted by them. Her statement regarding the respondents, being a consenting party to the sale and their having played a prominent role in the matter of its finalization and entry in the register of mutations is supported by the report of the Patwari, Muhammad Shafi, on the mutation, copy Exh.
D. 1, and his (patwari's) statement as P. W.
1. Her statement to the effect that the respondents had undertaken not to institute a suit for pre- emption is, however, not supported by any other evidence. Even if this part of her statement is not relied upon, in view of her statement in other respects coupled with the entries in the mutation and the statement of the Patwari as a witness of the respondents and the admission of Muhammad Khan respondent that he lived with his father (vendor) and their brother had gone abroad for whom according to Mst. Sardar Begum, the respondents had raised funds by arranging the sale in dispute, I do hold that the respondents had consented to the sale in question and had actually participated in its finalization and recording in the register of mutations.
13. To my mind, by the aforesaid conduct of the respondents, they had made the appellant believe that he could have the disputed land without the fear of its being pre-empted by them. Similar conduct was noticed on the part of the pre-emptors in the cases of Bhagat Ram, Zahuruddin, Muhammad Ali Khondaker and Sikandar Hayat and 4 others and it was ruled that it amounted to waiver on the part of the pre-emptor. The case of Bhagat Singh, which was cited by the learned counsel for the respondents and was also relied upon by the first appellate Court, is distinguishable on facts. As pointed out by the learned Judge, who decided the case of Bhagat Singh, the pre- emptor in that case had done nothing
14. {{FOOT NOTE}}
(1) 1969 D L C 436 (2) PLD 1971 SC 730
(3) AIR 1929 All. 589 (4) 55 I A 266
(5) I L R 48 All. 491 (6) 1929 I C 226
(7) AIR 1951 Nag. 451 {{FOOT NOTE}} ' except saying that he had no objection to the purchase of land by the vendee. This much, according to his Lordship, did not amount to waiver on the part of the pre-emptor. However, referring to another case reported as Fateh Chand and others v. Kirpa Singh and others (1), it was observed by his Lordship that the facts of that case were much stronger than those of the case of Fateh Chand and others for not only did pre-emptor in that case not object to the sale but had "also actively assisted in the transaction of the sale and went to the length of demarcating the land sold out of a large field". In other words, his Lordship approved of the decision in the case of Fateh Chand and others in which it was held that in view of the conduct of the pre-emptor in the said case, he had waived his right of pre-emption. The facts of the case of Fateh Chand and others are identical to those of the case in hand. Thus, the present case attracts the law laid down in the case of Fateh Chand and others and not that of case of Baghat Singh.
14. In the circumstances of the present case, therefore, I entertain no manner of doubt that in view of the conduct ascribed to the respondents they had waived their right of pre-emption. The learned Additional District Judge was, therefore, not right in decreeing the suit of the respondents which had been dismissed by the learned trial Court.
15. In result, I accept this appeal with costs, set aside the judgment and decree of the learned Additional District Judge and restore those of the learned trial Court. {{FOOT NOTE}}
(1) 48 P R 1912 {{FOOT NOTE}}