MIAN BURHANUDDIN KHAN, J.-Leave was granted by this Court vide: order dated 6th December, 1976 to examine the question that the finding of fact arrived at by the learned District Judge was reversed by the High court for no good reasons and except for a passing reference to the judgment of the Court of First Appeal there has been no proper discussion of; the relevant point much less the finding being perverse based on misreading of evidence.
2. Facts giving rise to this appeal, briefly stated, are that the defendant/respondent Muhammad Javed purchased land measuring 30 kanals 15 marlas in Khasras Nos. :269 to 1272 in village Zohrian, Tehsil Mansehera, District Hazara by one transaction and mutations Nos. 3285, 3286 and 3303 were attested on 14th October, 1969,16th May, 1970 and 29th August 1970 respectively. Three pre-emption suits Nos.307-1/1970,371/1970 and 390/1970which were disposed of by Civil Judge, Manshera vide judgments all dated 26th April, 1971. Appeals Nos, 174/13, 175/13 and 176/13 filed against the said Judgments and decrees of the trial ,fudge were accepted by the learned District Judge vide judgments all dated 13th September, 1971. Three Regular Second Appeals, pre--feered by the defendant/respondent were accepted by the learned Peshawar High Court vide impugned judgment dated the 12th July, 1976, whereby the judgment and decrees of the trial Court were restored.
3. Of the five issues framed by the trial Court Issues Nos. 2 and 3 read as follows :-
(2) Whether the plaintiff is estopped from suing?
(3) Whether the plaintiff has a superior right of pre-emption ?
The learned trial Court while deciding issue No. 3 observed that the plaintiff/appellant (herein) is a relative of the vendor and was present at the time of transaction but had declined to purchase the land when offer was made to him by the vendor as testified by D. W. 1 who was not cross-examined on this point, and even other--wise there was no reason to discard the statement of D. W.
1. The plaintiff, therefore, acquiesced in the transaction and is now estopped to bring the suit. The learned trial Judge while discuss--ing issue No. 2 held that the plaintiff, as witness under cross-exa-- mination, admitted that he had participated in the negotiations regard--ing the sale. He was thus estopped to enforce his right of pre---emption and the issue was decided in favour of the defendant/res--pondent. On appeal the learned District Judge, while dealing with the issue in question held that the plaintiff had admitted that the vendor had received a sum of Rs. 400 which was counted by him. Mere presence, at the time of bargain does not mean that the land was offered to him but he declined to purchase the same nor does it mean that he participated in the negotiations of sale or that the sale was pushed through to successful conclusion through his efforts. His admission that the vendor had received Rs. 400 in the context that a fictitious price had been entered in the mutation relating to the sale with a view to deter the possible pre-emptor and the inference drawn by the learned Civil Judge from an admission which was tort from its real context cannot be sustained on the evidence on record. Mere willingness to acquiesce in the sale could not have, by words or conduct, amounted to estoppel nor could it bar a claim of pre--- emption. Waiver must be conscious and not due to misapprehension.
4. A learned Single Judge of the Peshawar High Court disposed of the three R. S. As. Nos. 401, 402 and 403 of 1973. In paragraph 5 of judgment dated 12th July, 1976 he referred to the judgment of the trial Court in Suit No. 390/1 as unexceptionable holding that a refer--ence to the written statement filed in this suit will show that the defendant-vendee whose guardian ad item happened to be his mother, had submitted that the plaintiff was estopped by his conduct, and in reply to para. 2 (d) of the plaint she had stated "there was no need of notice. The bargain was to the knowledge and at the instance of the plaintiff". Then the learned fudge referred to three statements made by Abdur Rashid, plaintiff-pre-emptor. Muhammad Sultan defendant-vendor who appeared as D. W. 1 and Shamroz attorney of the guardian ad item of the minor defendant-vendee who appeared as D. W
3. Abdur Rashid, in his cross-examination maintained that be was not present at the time of the sale.Muhammad Sultan D. W. 1 stated in his cross-examination that he had offered the disputed land to the plaintiff but he refused to take it and the bargain with the defendant was completed in consultation with the plaintiff, and the plaintiff was present at the time of the bargain and the amount of sale seas received by him when the mutation was entered in the presence of the plaintiff and with his consent.
5. Dealing with the said civil suit the learned Judge held that a reference to the statement of Abdul Rashid, plaintiff-pre-emptor would show that he was present when the bargain was completed, he collected the money received from the vendee, counted it and in one case he counted currency notes worth Rs. 400 and in the other worth Its. 500. This will indeed be a remarkable co-incidence that the plaintiff -pre-emptor was to be present on all the three occasions.
6. In view of the above finding, we ourselves, after examining the record, find that in the cross- examination Abdur Rashid, plaintiff, had admitted that he was present at the time of the transaction and Rs. 400 were received by the vendor and it was he who had counted the currency notes.. Thus, it becomes quite clear that there vas no misreading of evidence by the learned High Court Judge rather the evidence was not appreciated in its correct perspective by the first appellate Court. It has been correctly held by the learned Judge that the appellant has committed a positive act in the completion of the sale.
Thus, we find no merit in any of these three appeals which are all, consequently, dismissed with no order as to costs.