' This Regular Second Appeal is directed against the judgment and decree dated 15-9-1981 of the Additional District Judge, Faisalabad, whereby he dismissed the appeal filed by the appellant against the judgment and decree dated 16-12-1979 of the trial Court decreeing the pre-emption suit of the respondent-plaintiff.
2. There is no dispute as to the superior right of the respondent. The controversy only relates to findings of the Courts below on issue No, 2 namely, whether the plaintiff has waived his right of pre- emption. The trial Court after appreciating the evidence on record; recorded a finding that since no notice in writing was given, the simple refusal, therefore, did not amount to waiver in the light of the ratio laid down in Baqri v. Salehon (1). The first appellate Court without re-evaluating the evidence on record concurred with the findings of the trial Court simply on the ground that no notice was given to the plaintiff-pre-emptor of the intended sale.
3. Learned counsel for the appellant submitted that the Courts below have failed to properly interpret and apply the law laid down by the Supreme Court in the precedent case. It is submitted that the land, in dispute, was offered to the respondent-plaintiff .But he refused to purchase it notwithstanding the fact that at the time of bargain he was approached in the form of a panchait.
4. Learned counsel for the respondent submitted that a concurrent finding of fact has been recorded by both the Courts below that the suit was not hit by waiver on the basis of evidence adduced before it and, therefore, this finding is not assailable in second appeal. He further submitted that the trial Court recorded a specific finding that the evidence adduced by the appellant-defendant was not sufficient to bar any pre-emptor from filing a suit. This finding was concurred by the lower appellate Court, and therefore, the matter is closed there. He next submitted that notice in writing under section 19 of the Punjab Pre-emption Act was necessary to create waiver. No notice was admittedly given and therefore, the question of estoppel or waiver did not arise. Learned counsel also relied upon Bqris case. Reliance was also placed on Kanshi Ram .Sharma v. Lahori Ram (2), to contend that refusal simplicities to purchase the property does not operate as waiver or estoppel.
5. Considering the evidence on record in the light of the submissions of the learned counsel for the parties, it is apparent that the respondent refused to purchase the land, in dispute for want of funds. The observation of the trial Court that the evidence produced by the defendant was not sufficient to bar any pre-emptor from filing a suit is arbitrary in the context of the term "waiver" as has been judicially interpreted. It 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. Kanshi Ram Sharma's case relied upon by the learned counsel for the respondent goes against him. In that case it was held that, refusal by manager of joint Hindu family to purchase the property sought to be preempted binds the co-parceners and operates as a complete waiver by all -the
(I) PLD 1972 SC 133 (2) AIR 1938 Lah. 273 ' members of the family. The controversy in this case has been settled by the Supreme Court in Baqri's case, wherein after examining the case-law, the following principles were laid down to determine as to whether or not there is waiver in a given case :- "(i) 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.
This is consistent with the principle of foreclosure of right of pre-emption as envisaged in section 19 of the said Act.
(ii) 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."
Applying the test laid down in the aforesaid principles, the waiver in this case is apparent on the face of the record. The respondent expressly refused to purchase the property being not interested in it. His conduct was, therefore, sufficient to warrant an inference of relinquishment of his right of pre-emption. The absence of notice in the circumstances of the case was of no consequence. The learned trial Court merely made a bald mention of Baqri's case in the impugned judgment without noticing the principles laid down therein.
' In view of the above, the judgments and decrees of the Courts below are set aside and the appeal is allowed without any order as to costs.