' ABDUS SATTAR ASGHAR, J.---This Regular Second Appeal is directed against the judgment and decree dated 21.04.2012 passed by the learned Additional District Judge Jaranwala whereby respondents first appeal was allowed while setting aside the judgment and decree dated 20.09.2010 passed by the learned Civil Judge Jaranwala and appellant's suit for pre-emption was dismissed.
2. Succinctly facts leading to this appeal are that the appellant lodged a suit for pre-emption against the respondents to pre-empt the impugned sale of the suit land described in the head- note of the plaint particularly mentioning the date, time and place where respondents allegedly performed Talb-i-Muwathibt and further asserted that notices of Talb-i-Ishhad were sent to the respondents which were received by them. Respondents contested the suit through written statement denying the lawful fulfillment of Talb-i-Muwathibt and Talb-i-Ishhad and categorically contended that the appellant had knowledge even before and after recording and attestation of the impugned sale mutation which was sanctioned with the consent of the appellant and thus he has waived his right. The learned trial court framed the following issues as arising out of the divergent pleadings of the parties:--
1. Whether the plaintiff has superior right of pre-emption over the property in dispute? OPP
2. Whether the plaintiff has fulfilled the requirement of talbs? OPP
3. Whether the plaintiff is entitled for decree as prayed for? OPP
4. Whether the plaintiff has no cause of action and locus standi to file the instant suit? OPD
5. Whether the plaintiff has waived his right to pre-emption? OPD
6. Whether the plaintiff is estopped by his own words and conduct to file the instant suit? OPD
7. Whether the plaintiff was given notice of sale? OPD
8. Relief.
3. To discharge the burden of proof the appellant himself appeared in the witness-box as PW-5 and also produced Nazir Hussain Branch Post-Master (PW-1), Zahid Mahmood Clerk/scribe of the notice of Talbe-Ishhad (Exh.P.2) as PW-2, Mushtaq Ahmad as PW-3 and Mohy-ud-Din as PW-4 and also produced documentary evidence Exh.P-1 to Exh.P.12. On the other hand respondent Muhammad Abbas father of the minor respondents appeared in the witness-box as DW-1 and produced Syed Munir Ahmad Shah as DW-2. He also produced reply to the notice of Talb-i-Ishhad (Exh.D.1), copy of Jamabandi for the year 2006-2007 (Exh.D-2) copy of Mutation No.1519 (Exh.D-3) and copy of Khasra Girdaweri (Exh. D.4).
4. The learned trial court recorded the findings on issues Nos.1, 2 and 5 pertaining to superior right of pre-emption, fulfillment of talbs and waiver against the respondents and thus decreed the suit vide judgment and decree dated 20.09.2010. Being aggrieved the respondents preferred an appeal which was allowed by the learned first appellate court through the impugned judgment and decree dated 21.4.2012,hence this Regular Second Appeal.
5. Arguments heard. Record perused.
6. Abdul Aziz appellant (PW-5) in his testimony has reiterated his version as set-forth in his plaint with regard to Talb-i-Muwathibat that on 10.05.2006 at 9:00 a.m. He along with Mohy-id-Din (PW-4) was sitting in his house when Mushtaq Ahmad (PW-3) made disclosure of the sale of the suit land to them and the appellant immediately pronounced his right of pre-emption. Both Mushtaq Ahmad (PW-3) and Mohy-ud-Din (PW-4) in their statements have corroborated the appellant's version in unequivocal and unambiguous terms.
7. Learned counsel for the respondents has vehemently argued that Mushtaq Ahmad (PW-3) in his statement has stated that at the time of disclosure and making Talb-i-Muwathibt they were sitting in the residential house of the appellant whereas appellant's witness Mohy-ud- Din (PW-4) in his cross-examination stated that at that time he was sitting in the courtyard of the house of the appellant and that statement of Mohy-ud-Din (PW-4) is contradictory to the appellant's version. I am afraid the learned counsel for the respondents is misconceived. Courtyard is a part of the residential have. Statement of Mohy-ud-Din (PW-4) therefore does not bear any material discrepancy with regard to the place of disclosure or performance of Talb-i-Muwathibt. This argument of the learned counsel for the appellant is devoid of any reason or force and thus repelled.
8. As regards Talb-i-Ishhad, appellant's assertion in his plaint is that on 11.5.2006 he along with Mushtaq Ahmad and Mohy-ud-Din came to kuchehry, got scribed notice of Talb-i-Ishhad (Exh.P.1- four 'Para') from Zahid Shah Clerk (PW-2) attested by Mushtaq Ahmad (PW-3) and Mohy-ud-Din (PW-4) and sent the same to the respondents through registered post. He also produced postal receipts No.1211 (Exh.P.2) and 1212 (Exh.P.3). Respondents in preliminary objection No.3 of their written statement did not deny the receipt of notice of Talb-i-Ishhad rather categorically contended that reply to the notice was also given by the respondents through their father. Muhammad Abbas father/guardian ad-litem of the respondents/vendees in his statement as DW-1 has admitted that he had received the notice which was replied by him through Chaudhry Sadiq Advocate. He has also produced copy of the said reply as Exh.D.1 on the record. In view of the above, it is evident on the record that the appellant has sufficiently established the fulfillment of Talb-i-Muwathibt and Talb-i-Ishhad in accordance with law as envisaged under section 13 of the Punjab Pre-emption Act, 1991.
9. As regards the superior right of pre-emption, it is evident on the record that vendors namely Azhar Abbas and Ahmad Abbas (minors) admittedly were not owner in the estate at the time of attestation of the C impugned sale mutation No.1519 dated 20.01.2006 therefore the appellant being a co-sharer has unambiguously superior right of preemption qua the respondents.
10. I have carefully gone through the impugned judgment and decree passed by the learned first appellate court. Learned first appellant in the impugned judgment observed that 'parties were resident of the same village and the appellant being a co-sharer in the same khata and relative of the respondents having proximity must be knowing this transaction effected on 20.01.2006 and that it was not possible that the appellant had no knowledge about this transaction.' With the above observation learned first appellate court found that the appellant's plea of having knowledge on 10.5.2006 and performance of Talb-i-Muwathibt and sending of notices of Talb-i- Ishhad on 11.5.2006 does not fulfil the requirement of talbs within the stipulated period of two weeks from the date of attestation of the mutation in terms of section 13 of the Punjab Pre-emption Act 1991. I am afraid the above observations and findings of the learned first appellate court are not supported by any ocular or documentary evidence rather they are based on surmises and conjectures. The suit land is situated in chak No.35/GB Tehsil Jaranwala District Faisalabad.
Impugned sale mutation was recorded by the Patwari on 16.1.2006. Muhammad Abbas (DW-1) father/guardian ad-litem of the respondents submitted that they had gone to the Patwari once only to Satiana for recording of mutation and that mutation was recorded and sanctioned on the same day. In the next breath he stated that the day on which mutation was recorded he had not gone to the Patwari rather his elder brother has been going to the Patwari along with him.
Statement of Muhammad Abbas (DW-1) therefore clearly manifests that the impugned sale mutation was neither recorded nor attested in Chak No.35/GB rather all the proceedings on the mutation were taken at Satiana Bungalow. Admittedly there is nothing on the record to show that the appellant had participated in the process of registration or attestation of the sale mutation, therefore observation of the learned first appellate court that the appellant had prior notice of the impugned sale is patently erroneous and untenable.
11. To substantiate their plea of waiver the respondents have produced Syed Munir Ahmad Shah vendor as DW-2. He stated that his land was being cultivated by Muhammad Ishaq brother of Abbas (DW-1); that one Muhammad Ashraf on behalf of the appellant had asked him to sell the land and that they will provide the customer; that he went to the house of the appellant who was not present in the house; that he met appellant's elder daughter namely Zarina Bibi to whom he asked that he intends to sell the land and that if her father intends to purchase the same she may send him whereupon Mst. Zarina Bibi stated that they did not have the funds to purchase the land; that thereafter he met Muhammad Nawaz brother-in-law of the appellant who offered less rate therefore deal could not be struck with him. Bare reading of the above statement of Syed Munir Ahmad Shah vendor (DW-2) transpires that he had never directly offered the sale of the suit land to the appellant nor the appellant ever declined to purchase the same or waived his right of pre- emption. Admittedly Muhammad Abbas (DW-1) father of the respondents had never accompanied him to make any offer of the sale to the appellant or any of his family members.
12. Section 15 of the Punjab Pre-emption Act, 1991 postulates that the right of pre-emption shall be deemed to have been waived if the preemptor has acquiesced in the sale in question or has done any other act of omission or commission which means waiver of the right of preemption. In pre- emption matters the word 'acquiescence' is introduced in the concept of waiver for the first time through section 15 of the Act ibid. The word 'acquiescence' means satisfaction, lack of opposition or giving of assent. The Hon'ble Supreme Court of Pakistan in the case of Baqri and others v. Salehon and others (PLD 1972 SC 133) after exhaustive review of the case law enunciated following principles on the question of waiver:--
(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 a 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.
' It was reiterated by the Hon'ble Apex Court in the case of Jam Pan I V. Muhammad Abdullah (1992 SCMR 786) wherein it was further held that estoppel is the foundation of waiver. The above views were maintained by the Hon'ble Supreme Court in the case of Muhammad Din through Legal Heirs v. Nazir Muhammad through Legal Heirs (2004 SCMR 1394). This Court in the case of Ch. Abdul Majeed v. Ch. Inayat Ali and 4 others (PLD 2001 Lahore 194) has held that deliberate inaction on the part of a prospective pre-emptor forms part of the concept of waiver.
13. In the light of the above cited dictums it is obvious that clear and cogent evidence is required to deprive a person of any legal right. Mere ocular statement of a couple of witnesses referring to certain circumstances to infer that the prospective pre-emptor had knowledge of the sale certainly is not sufficient to establish that he had positively relinquished his right to pre-empt the sale.
14. In this case above noted statement of Syed Munir Ahmad Shah vendor (DW-2) is not sufficient at all to constitute or substantiate any waiver against the appellant. The learned first appellate court therefore erred in law and facts while recording the impugned findings on the point of talbs and waiver merely on the basis of surmises and conjectures and misreading and non-reading of the material evidence available on the record and thus failed to exercise its jurisdiction in accordance with law. The impugned judgment and decree dated 21.4.2012 passed by the learned first appellate court therefore being untenable is liable to set aside.
15. For the above reasons, the appeal is accepted, judgment and j decree dated 21.04.2012 of the learned Additional District Judge Jaranwala is set aside and the judgment and decree dated 20.09.2010 j passed by the learned Civil Judge Jaranwala is maintained.