' MUHAMMAD AZAM KHAN, C.J.---The captioned appeal with leave of the Court arises out of the judgment passed by the High Court on 30-6-2009, whereby appeal filed by the respondent, herein, has been accepted.
2. Precise facts for disposal of appeal are that respondent No.1 filed a suit for preemption against Hussain Khan, predecessor-in-interest of the appellants, herein, in the Court of Civil Judge Bagh.
The learned Civil Judge after necessary proceedings dismissed the suit on the ground of acquiescence and waiver. The plaintiff, respondent herein, filed appeal in the Court of District Judge Bagh which was dismissed. Dissatisfied from the judgment of first appellate Court. He filed second appeal in the High Court. The learned Chief Justice in the High Court accepted the appeal on 30-6-2009 and decreed the suit on the ground that right of pre-emption is proved. The appellants, herein, have not challenged the findings of the trial Court on this ground and necessary ingredients to constitute waiver are missing.
3. Sardar Muhammad Habib Zia, counsel for the appellants, argued that the judgment of the High Court is not maintainable. There are concurrent findings of facts recorded by the two Courts below that the plaintiffs have waived the right of pre-emption. The findings couldn't be disturbed by the High Court in second appeal. He requested for acceptance of appeal. Waiver is proved from evidence adduced by the defendants, appellants herein.
4. Sikandar Shah, real respondent, appeared personally before the Court and argued that the judgment of the High Court is perfect legal. The appeal may kindly be dismissed.
5. We have heard the learned counsel for the appellants and respondent No.1 personally, and perused the record. The record reveals that the trial Court while delivering judgment observed that the right of pre-emption, the sale consideration and market value of the suit land are proved. The plaintiffs had a right of pre-emption against the vendee and sale consideration entered in the sale-deed was passed to the vendor. The pre-emptor or vendee have not challenged the findings of the trial Court on this issue. They have attained finality. The trial Court dismissed the suit on the question of waiver and acquiescence. The first appellate Court concurred with the same. The arguments of the counsel for the appellants that vendor had offered the plaintiffs to purchase the land but he refused to purchase the land and that after refusal he cannot turn around and file suit for pre-emption, has no force. The oral evidence that a mere offer was made to the plaintiffs by the vendor that he wants to sale the land and he refused, cannot constitute waiver. Under Section 18 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) a notice by the vendor, who proposes to sell agricultural land or village immovable property in respect of which any person has a right of prior. B purchase, is mandatory. We deem it proper to reproduce section 18 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK), which reads as under:- "18. Notice to persons having right of prior purchase.---When any person proposes to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property, or urban immovable property, in respect of which any persons have a right of prior purchase, he may give notice to sell such land or property, or of the amount due in respect of the mortgage, as the case may be.
' Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property is situate and shall be deemed sufficiently given if it is served in accordance with the provisions of Order V of the Code of Civil Procedure , "
' A perusal of section 18 reveals that when any person wants to sell any agricultural land or village immovable property in respect of which any person has right of prior purchase, a notice to sell such land shall be given through a Court having jurisdiction in the area. The notice must be in accordance with the provisions of Order V of the Civil Procedure Code. The words used in section 18 "proposed to sell" indicate that notice should be given before the completion of the sale. It is enjoined upon the vendor that beforeentering into definite contract he B should issue notice to sell the property against a definite price arid if he cannot get the price mentioned in the notice, he can sell the same even at a lower price. The notice shall contain the details of title, property proposed to be sold and the price at which he wants to sell it. Notice must be in writing and be issued through the seal of the Court and the signature of the officer issuing the process. If, after receipt of notice, the pre-emptor fails to respond under section 19, he shall be deemed to have waived the right of pre-emption. When a notice is served upon a person having right of prior purchase under section 19, he is bound to give a notice within a period of three months through the Court that he intends to file a suit for pre-emption. If he fails to give any notice under section 19, it shall be presumed that he has waived the right of preemption.
' Waiver commonly understood is an intentional relinquishment of a known right. It may consist either of positive act or relinquishment or C of conduct such as would warrant an inference of relinquishment of right.
' Mere presence of plaintiff/pre-emptor at the time of sale, when the bargain was struck, does not prove acquiescence in the sale. In the case reported as Mst. Alamah Bibi and 4 others v.
Muhammad Bashir and 6 others (PLD 1994 Supreme Court (AJ&K) 26), it has been observed as under:- "Section 18 postulates notice by vendor to the persons having the right of pre-emption containing the particulars of the property desired. To be sold or the amount due in respect of the mortgage, as the case may be. Such notice is given through the Court having territorial jurisdiction in the matter.
Section 19 lays down that persons having the right of pre-emption to whom a notice under section 18 is given have to answer such notice within a period of three months of such notice or further extended period as may be allowed by the Court but within one year from the date of notice, as to whether they accept the price or the amount due on the footing of the mortgage as correct and is willing to pay the same or not. In case of notice contemplated under section 18 and answer to it under section 19, the controversy between pre-emptor and vendor or vendee is settled finally. On the assumption of the provisions of sections 18 and 19, mentioned above, if it is positively proved that the preemptor abandoned or relinquished his prior right of purchase by refusing to purchase the property under sale such a pre-emptor is estopped from exercising his right of preemption. On this premises an objection of waiver is suitably invoked against a pre-emptor."
' It was further observed in the same authority as under:-- "The consensus, therefore, is that at the time of the alleged waiver the right of pre-emption must exist and that pre-emptor should be shown to have abandoned or relinquished such right knowingly. An act or omission of a pre-emptor prior to the transaction of sale is not deemed sufficient to deprive him of his superior right which in fact accrued at the time of completion of the sale. Likewise it was necessary to prove that the pre-emptor was alive to his right and in that state of circumstances by his conduct he waived such right. Sections 18 and 19 of the Right of Prior Purchase Act deal with the statutory waiver but a preemptor may be estopped from claiming his right of prior purchase on account of his other acts such as clear refusal to purchase or agreeing to forego his claim. In order that a plea of waiver may succeed it should be proved that the right of preemption if already vested was extinguished by some act of person to whom it belonged or before it actually arose on the execution of the sale-deed. Thus in the one case it would amount to relinquishment of the right and in the other to a representation express or implied that he would not enforce it."
' Similarly in the case reported as Muhammad Ajaib v. Farrukh Imtiaz and 3 others (2004 M LD 638), it was observed as under:- "Mere oral statements by some witnesses showing that a preemptor had knowledge of sale do not create relinquishment of a right as more is needed in this respect. Obviously, a vendor even if he had offered the land in question at a relevant time and which was not accepted by a pre-emptor for certain reasons, then may change his mind subsequently, when his liquidity permits and opt for the same land. So nothing can be said to be permanent in this respect until it is established that there was an absolute refusal. So we have to look for a conduct clearly indicating a deliberate abandonment of the right."
7. From the analysis of above case-law, it can safely be held that the defendants, appellants herein, failed to prove the waiver. The plaintiff, respondent herein, has not waived his right of pre- emption. The trial Court as well as the first appellate Court recorded findings against the law.
The result of above discussion is that finding no force in this appeal, it is hereby dismissed.