' ABDUL MAJEED MALLICK, ACTG. J.-This appeal by leave arises out of the judgment of the High Court dated 4th May, 1978, whereby the findings of the Courts blow were maintained.
2. The facts giving rise to the appeal are that Sher Ahmad Khan, ancestor of the present respondents, pre-empted the sale of suit land on account of his relationship with the vendor. All Haider Khan vendee-appellant denied the claim of prior purchase of the plaintiff and raised objections in respect of validity of the sale deed, improvements affected over the suit land in shape of a house and plantation of trees, and waiver. The trial Court recorded finding on all the issues against the defendant-vendee and decreed the plaintiff's suit on payment of Rs, 3,000, the price of land in addition to the costs of the sale deed, on 31-8-1974. The decision of the trial Court was challenged in appeal to the District Judge, Poonch. The learned District Judge concurred with the finding of the trial Court and dismissed the appeal on 13th June, 1977. Ali Haider Khan feeling aggrieved of the finding of District Judge went in second appeal to the High Court, where again his claim was disallowed and appeal was dismissed with costs.
3. Leave was granted to examine the points given below :- (i)Whether tape-recorded conversation is admissible in evidence, and if so whether a party is legally entitled to introduce such evidence after closing his case ? And
(ii) whether the contents of the application dated 20-5-1972 about the tape-recorded talk of Sher Ahmed Khan respondent make out a case of waiver or abandonment of pre-emption claim ?
4. Mr. Muhammad Hanif Khan, the learned counsel for the appellant mainly contended that plaintiff-pre-emptor waived his prior right of purchase by his conduct, supported by attending circumstances. In order to prove waiver the learned counsel sought permission to produce a cassette containing the conversation of Sher Ahmed, as additional evidence. The cassette stated to be in possession of the appellant. It was claimed that during the pendency of the suit a conversation of Sher Ahmed pre-emptor was recorded in the cassette by one Nazir in presence of two other persons. In that conversation, Sher Ahmed pre-emptor disclosed that "he owed Rs, 2,000 to the vendee. He was prepared to pay a sum of Rs, 5,000 to the vendee out of the Court and a sum of Rs, 1,300 in the Court." The conversation alleged to be recorded is reproduced (verbatim) in the application dated 20th May, 1972. It is pointed out that the appellant, moved the trial Court for permission to lead aforesaid additional evidence but his prayer was declined on 24-6-1974. An objection to that effect was raised before the District Judge in para. 4 of the memorandum, and also before the High Court in para, 3 of the memorandum, but both the Courts failed to give findings on the objection.
5. It appears from the record that the defendant-appellant, closed his evidence on 20th May, 1970, when plaintiff-pre-emptor was directed to lead his evidence. An application for additional evidence was moved on 20th of May, 1972, but the same was rejected by the trial Judge on the ground that defendant-vendee was not entitled to lead additional evidence as he had availed the opportunity and closed his evidence. No further concession was deemed expedient after availing full opportunity in that manner. This order of rejection of application for additional evidence, was not challenged in revision. The appellant, raised the objection relating to refusal to allow admission of cassette, as additional evidence, before the District Judge and the High Court but it appears from the judgments that the objection was not passed in arguments. The District Judge and the learned Chief Justice of the High Court formulated the points argued before them and recorded their findings on all such points.
6. Mr. Muhammad Hanif the learned counsel for the appellant, emphasised that the cassette was sought to be admitted in evidence, to prove that the pre-emptor waived his right of prior purchase and was not entitled to the decree of pre-emption. In answer to a question of the Court, it was admitted that the conversation recorded in the cassette is reproduced verbatim) in the application dated 20-5-1972. The alleged conversation, as how in the application is reproduced below :-{{URDU TEXT}}
7. First we examine as to what waiver is ? The dictionary meaning of word "waive" is "To abandon, relinquish, desert, forsake-To relinquish a right, claim, or contention) either by express declaration or by some intentional act which by law is equivalent to this." In Law Terms and hrases 'waiver' is described "Forsaking the assertion of a right act, at the proper time. An intentional relinquishment of a right a man is entitled to." he word 'Waive' means to "Forego ; to waive a claim or right, or not to put forward the claim or right."
8. The definition of word 'waiver' attracted the attention of the learned Judges in Manak Lal's case (1). The relevant part of the observation is reproduced :- "Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim. Waiver, therefore, cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question."
9. The proposition was raised in Mustaqim v. Sher Bahadur' (2) where in a pre-emption case, the learned Judge, on examining the case law on the point, described "Waiver" as under :- "Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right."
10. In Mohibullah's case (3) while deliberating over the proposition relevant to waiver the learned Judges applying the test laid down in AIR 1915 All. 51, arrived at a conclusion :- "Although no hard and fast rule can be laid down as to what constitutes waiver by conduct in relation to a pre-eruptible sale and consequently every case has to be decided in the light of its peculiar facts, the test laid down in AIR 1915 All. 51 that "the pre-emptor must have a fair opportunity of purchasing the property" seems to be the heart and soul of the legal problem. If the answer is in the affirmative, the pre-emptor must fail but if it is in the negative, he must obviously succeed."
Waiver, precisely, mean "to abandon or relinquish, a known vested right by an express declaration or by conduct". {FOONOTE}}
(1) PLD 1957 SC (Ind.) 346 (2) PLD 1962 Pesh. 14
(3) PLD 1974 Note 96 at p. 146 ' Any person who intended to take benefit of-waiver, is under an obligation to prove waiver by conclusive proof.
11. Before considering the question as to whether additional evidence be allowed or not, we propose to scrutinize the merit of the proposed additional evidence. The proposed additional evidence is already placed on the record through application wherein the alleged conversation recorded in cassette, is reproduced. Assuming that the alleged conversation was that of the preemptor and it was recorded in good faith, and it is read in evidence of the vendee, or well-considered view is that the alleged conversation by itself or even when read along with other evidence, does not constitute waiver. Our answer to the suggestion of the learned counsel for the appellant is in negative. The reasons are :-
(i) that the alleged conversation sought to be proved by admission of the cassette in evidence, does not subject to an inference that the pre-emptor, ever abandoned his right of prior purchase. A reading of the language, reproduced in the application, clearly show that the pre-emptor was determined to enforce his right to get the decree on payment of the price of the property. A reference to Rs, 2,000 owed to the vendee, does not admit the conclusion that the said amount was taken with the intention to waive his right of pre-emption. This part of the statement when read along with the evidence on record, we find ourselves in agreement with the learned Chief Justice of the High Court that the details of the amount, given in the evidence of defendant's witnesses do not inspire confidence to accept that the amount, in case it was paid to the plaintiff, in fact it was paid in connection with relinquishment of pre-emption right.
(ii) that the appellant, despite raising the point before the District Judge and the High Court, did not press it into arguments. That indicates that by conduct, the appellant abandoned the objection in the Courts below.
(iii) that the question of waiver, is after all a question of fact. All the Courts below, examined the evidence and concluded that the defendant-vendee failed to prove waiver. It is a consistent policy of this Court not to entertain an abjection on a question of fact unless the Court was satisfied that the conclusion of the Courts below was founded on misreading, non-reading or misinterpretation of the evidence. A view taken by the Courts below on proper appreciation of evidence, is not open to interference merely, that on appreciation of evidence, this Court may arrive to a different conclusion.
' In view of the aforesaid observations the appeal being devoid of force is hereby dismissed with costs.