Ghulam Mustafa Mughal, J.--This appeal by our leave arises out of the judgment passed by the High Court on 16.6.2015 in Civil Appeal No, 112 of 2012.
2. Precise facts forming background of the captioned appeal are that Muhammad Afsar, predecessor-in-interest of the respondents, herein, filed a suit for declaration against the defendant in the Court of Civil Judge Sehensa on 4.1.2010, claiming therein that the sale-deed dated 30.9.2009, executed by Defendant No, 2 in favour of Defendant No, 1, in respect of land comprising khewat No, 71, Khaata No, 272, Survey No, 913, measuring 3 kanal, 7 marla, is without possession, has been made in excess of share of the vendor, hence the same is illegal and inoperative as against the rights of the plaintiff. In the alternate, decree for possession on the basis of right of prior purchase in lieu of Rs, 300,000/- was prayed. The defendants contested the suit and refuted the claim of plaintiff on several grounds including the ground of waiver. The trial Court on 10.6.2010 framed issues in the light of pleadings of the parties and directed them to lead evidence in support of their respective claim. At the conclusion of the proceedings, the learned Civil Judge Sehensa, vide judgment and decree dated 28.12.2011, cancelled the sale-deed to the extent of 7 marla for having been executed beyond the share of the vendor whereas a decree for possession on the basis of right of prior purchase was granted to the extent of remaining land subject to payment of Rs, 447,762/-. Feeling aggrieved from the judgment and decree dated 28.12.2011, both the parties challenged the same through cross-appeals before the Additional District Judge Sehensa on 25.1.2012 and 31.1.2012, respectively. After hearing the parties, the learned Additional District Judge Sehensa dismissed the appeals vide judgment and decree dated 14.5.2012. Shaukat, appellant herein, filed an appeal before the High Court against the judgment and decree dated 14.5.2012 on 1.8.2012. The learned High Court through the impugned judgment dated 16.6.2015, has dismissed the appeal.
3. Mr. Muhammad Younas Tahir, advocate, appearing for the appellant, has not disputed the judgment of the High Court on the other grounds except the plea of waiver. The learned advocate while referring to ground of para 3 of the memorandum of appeal before the High Court, vehemently argued that this ground was forcefully argued and very cogent evidence led by the defendant, appellant herein, was not considered by the trial Court as well as by the first appellate Court and the High Court has equally failed to consider the evidence, therefore, the judgment badly suffers from misreading and non-reading of the evidence hence is liable to be recalled. The learned advocate also argued that only one witness has been produced by the plaintiff in support of his case, therefore, the case was not proved. In support of his submissions, the learned advocate referred to and relied upon the cases reported as Ghulam Rasool vs. Muhammad Khan & another [1998 SCR 235] and Munir Hussain & another vs. Abdul Hamid [1995 M LD 1596].
In Ghulam-Rasool vs. Muhammad Khan & another 11998 SCR 235], it was observed that no hard and fast rule can be laid down for constitution of waiver but it has to be seen in the light of facts of a particular case.
In Munir Hussain & another vs. Abdul Hamid 11995 M LD 1596], a learned single judge in the High Court has also considered the plea of waiver raised before him and at page 1599 of the report,. observed as under: "It implies that at the time of alleged waiver, the right of pre-emption must exist and that the pre- emptor should be shown to have abandoned or relinquished such right knowingly, by his conduct, apart from Sections 18 and 19 of the Right of Prior Purchase Act, dealing with the statutory waiver, as such the pre-emptor may be estopped from claiming his right of prior purchase on acco.unt of his other acts, such as clear refusal to purchase or agreeing to forego his claim."
4. Conversely; Ch. Shakeel Zaman advocate, appearing for the respondents, submitted that the learned trial Court as well as the first appellate Court has considered the entire evidence including the evidence led by the appellant, herein, in support of Issue No, 8 and after considering the same, they have decided the issue against the defendant. The learned advocate argued that the evidence led by the defendant-appellant in support of this issue was contradictory and is not confidence-inspiring, hence has rightly been disbelieved by all the Courts. He argued that waiver cannot be proved on assumption, presumption and conjecture, rather in order to deprive a plaintiff from his statutory right of pre-emption, very strong and cogent evidence should have been produced. The learned advocate argued that, it is not correct that the High Court has not attended to the question of waiver. He argued that the High Court has came to the conclusion that both the trial Court as well as the first appellate Court has concurrently returned the verdict against the appellant, therefore, the concurrent finding of facts cannot be disturbed in second appeal. The learned advocate in support of his submissions, placed reliance on the cases reported as Mst.
Ahmad. Bibi. & 4 others vs. Muhammad Bashir & <1 others [PLD 1994 Supreme Court (AJ&K) 261 and Nazar Ahmad & others vs. Fazal Hussain & 11 others 12005 SCR 751.
In Mst. Alamah Bibi & 4 others vs. Muhammad Bashi,. & 1 others IPLD 1994 Supreme Court (AJ&K) 261, the question of waiver has been considered by this Court and after considering the earlier case- law, at page 30 of the report, it has been observed as under:-- "The consensus, therefore, is that at the time of the alleged waiver the right of pre-emption must exist and that preemptor 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 pre-emptor may be stopped 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 pre-emption 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."
In Nazar Ahmad & others vs. Fazal Hussain & 11 others [2005 SCR 75], while rejecting the plea of waiver, this Court has observed as under:-- "The superior Courts of Pakistan have consistently maintained that the waiver is an intentional relinquishment of known right and unless there is cogent evidence reflecting conduct of the party clearly indicating abandonment of his right, he cannot be said to have deliberately forgone his right. Waiver has to be proved by evidence or by conduct of the party making a Court to believe that the conduct of the party clearly suggested his voluntary participation in execution of sale- deed and thus relinquishment of his right due to his conduct. There is nothing on record to suggest it. Waiver is a question of fact and the concurrent findings by all the Courts below on this point are conclusive proof of its absence, hence there is no justification to interfere in the concurrent findings of facts recorded by the three Courts below."
5. We have heard the learned advocates for the parties and gone through the record of the case.
6. A perusal of the record reveals that Issue No, 8 was raised with regard to plea of waiver and onus of proof was on the defendants. The learned trial Court has considered the statement of Mazhar, Ameer Dad and Akram, witnesses, in depth and came to the conclusion that these statements do not constitute any waiver because the conditions which have been approved by the superior Courts are not attracted for application of the plea of waiver. This finding has been affirmed by the fist appellate Court while returning its independent opinion on Issue No,
8. The judgment of the first appellate Court is not only supported by the case-law but the plea has been considered in depth. The learned High Court has dismissed the appeal mainly on the ground that both the Courts below on all the issues have concurrently rejected the claim of the appellant, herein. The contention of Mr. Muhammad Younas Tahir, advocate, appearing for the appellant, that plea of waiver has not been considered by the High Court, is devoid of any force. Second appeal can be filed only on the question of law or on the question of misreading or non-reading of evidence. Dismissal of the appeal by the High Court after observing that both the Courts have concurrently came to the impugned conclusion is sufficient compliance of law, therefore, separately deciding the plea of waiver was not necessary. Be that as it may, remand of the case solely on this ground is not desirable. We have ourselves considered the evidence led by the plaintiff in the light of stand taken by him. The statements of witnesses produced in order to prove Issue No, 8, if judged in view of the case-law referred to hereinabove, does not constitute waiver.
The upshot of the above discussion is that finding no force in this appeal, the same is hereby dismissed.