' This judgment shall dispose of R. S. As. Nos. 100, 101, 102 and 103, all of 1981, as common questions of law and facts are involved therein. It shall, however, remain on the file of R. S. A. No, 103 of 1981. The last mentioned R. S. A. Is directed against Abdul Aziz, respondent, who purchased land measuring 12 Kanals from one Tahira Begum. The other respondents, namely, Muhammad Nawaz, Muhammad Sarwar and Muhammad Aslam in the remaining three Appeals Nos. 100/81, 101/81 and 102/81, respectively, are his minor sons. Similar area was purchased by each one of them. Ch. Allah Ditta appellant, filed four separate suits to pre-empt these transactions ; one on his own behalf, and the other three on behalf of his three minor sons which were registered as 752/77, 750/77, 751/77 and 749/77, respectively. He based his superior right of pre-emption on being an owner of the estate.
The vendees resisted the suits, inter alia on the ground of waiver. An issue in this behalf was framed in each case which was, answered by the learned trial Court in favour of the vendees and the appellant's suits dismissed on 11th June, 1979. The trial Court's findings on this point, were upheld by the learned first Appellate Court, vide its judgments and decrees, dated 24th March, 1981. The appeals brought by the appellant thus also failed. The unsuccessful pre-emptors have now come to this Court in second appeals and confined their attack to the concurrent findings of the learned Courts below, on the question of waiver. It may be added that the respondents-vendees admittedly are not owners of the estate. The appellant's superior right of pre-emption thus, stands established.
2. I have heard the learned counsel for the parties and examined the record. It has been argued on behalf of the appellant that the plea raised by the respondents in their written statement is that he advised and induced them to purchase the land ; that he participated in the deal, and whereas the evidence led by them, was to the effect that before the transactions in dispute the land was offered for sale to the appellant but be declined to purchase it. The appellant's learned counsel contended that the evidence produced by the respondents, in support of waiver, altogether different from the case set up by them in the written statements and that, therefore such evidence could not have been looked into. For his these submissions the learned counsel relied on Government of West Pakistan (Now Punjab) through Collector v. Haji Muhammad (1), Sultan Ahmad v. Muhammad Anwar (2) and Siddik Mahomed Shah v. Mt. Saran and others (3). He further argued that even if, whatever the evidence was produced by the respondents was considered, no legal waiver was made out. According to the learned counsel, to constitute waiver, it was essential for the respondents to have shown that the land was offered to the appellant for sale, when their bargain was really settled with the vendees, and that the offer was made with reference to the actual price at which the land was intended to be sold. The contention thus was that as the alleged offer made to the appellant, did not conform to these requirements of law, the plea of waiver was not proved against the appellant. In aid of this proposition the learned counsel cited Baqri and others v.
Salehon and 3 others (4), Murida v. Hayat Muhammad (5) and Bindu Khan v. Indar Narain (6). It was lastly argued that as the respondents denied the appellant's superior right of pre-emption, therefore, their contention that they asked the appellant to purchase the land, obviously in recognition of his superior right of pre-emption, amounted to an inconsistent plea. Reliance was placed on Amin Yousuf Nizami v. Rashid Rayon Mills, Karachi (7) and Mumtaz and 3 others v. Mian Khan (8) to urge that raising of inconsistent pleas is not permissible in law.
3. For proper evaluation of the contentions raised by the appellant's learned counsel, a reference to the written statements of the respondents appears to be necessary. Before the trial Court, they were represented by same counsel who seemingly drafted the .Written statements. Abdul Aziz acted as guardian ad litem for his sons. The written statement in Suit No, 748/77 and 750/77 are identical wherein the appellant's claim that he was owner of the estate, was not denied. The relevant para. Of the "preliminary objection" of these two written statements and para. 3 thereof "on facts" are reproduced below :- "Preliminar y o fect ions".
"(2) That the plaintiff has waived his right of pre-emption as he himself advised the defendant to purchase the suit land.
"On, facts".
(3) That the plaintiff himself participated in the deal and himself persuaded the defendant to purchase the suit land. Therefore, there was no need for the said notice."
' However, in Suits Nos. 751177 and 752/77, in answer to para. 4 of the plaint, embodying averment, similar to the one as in other two suits, the respondents stated that it could not be replied for want of knowledge.
(1) PLD 1976 SC 469 (2) 1981 CLC 270
(3) AI R 1930 P C 57 (4) PLD 1972 SC 133
(5) PLD 1968 B J 5 (6) 43 I C 1006
(7) PLD 1971 Kar, 505 (8) PLD 1973 Lab, 47 ' Para. 3 of these two written statements, "on facts" have been couched in the same language and are reproduced below :- "On facts".
(3). That para. 3 of the plaint is incorrect. The plaintiff himself induced the defendant to purchase the suit land, he required no notice".
' There is, however, some variation in para 1 of the preliminary objections thereof.
"Preliminary objections (Suit No, 751/77).-(I) That the plaintiff himself advised the defendant to purchase the suit land and contested the transaction, hence he has waived his right of pre- emption."
"Preliminary objections" (Suit No, 752/77).-(l) That the plaintiff having advised the defendant to purchase the suit land, hence he has waived his right of pre-emption".
4. It is to be seen that in each case, the evidence produced by the respondents to prove that the appellant had waived of his right of preemption is the same. It consists of statement of Abdul Aziz who has already stated acted as guardian ad litem for his minor sons and the deposition of his two witnesses namely Muhammad Idrees and Abdul Qayyum. In fact the evidence recorded in one case has been transcribed almost verbatim in other three cases.
5. I shall first deal with the question of variation in the written statement and the evidence produced by the respondents. It is a well-established established rule that a party cannot be allowed to prove a case different' from the one pleaded by it. This rule has been reiterated in the Supreme Court, and the Lahore High Court's rulings cited at the bar in this behalf. To the same effect are the observations made in Privy Council's judgment. It needs to be examined, that how far this rule has been parted with by the respondents. It is in the statement of Abdul Aziz and Abdul Qayyum D. Ws. That the land was offered for sale to the appellant but he refused to purchase it and further held out to them that he would not file the suit for pre-emption. The third witness Muhammad Idrees has only proved that the offer was made to the appellant. This evidence has been relied upon by both the learned Courts below. The appellant's refusal to purchase the land and his further giving out, not to pre-empt the sales in question, clearly amounts to an inducement to the respondents to go ahead with the completion of the sales. It is also inferable from the evidence that the appellant consented to the sales. It can hardly be disputed that by such inducement waiver stood established. At least to the extent of inducement, which plea is common to all the written statements c and consent pleaded in two cases, the written statements are not at variance with the evidence. There can be no denial, that of the several contentions raised in the written statements, to establish waiver, even I one of such pleas is proved that would be sufficient to non-suit the appellant. The law on the question of variation, as laid down in Budho and others v.
Ghulam Shah (I) at (561) is : ................. Questions relating to variation of a case are to be decided on grounds of notice and prejudice. If the other party has notice of the variation and is not in any way prejudiced by it the variation is permissible. Of course this does not mean that one cause of action can be substituted by another, but in respect of the cause of action on which a suit is based the Court is not debarred from permitting variation if there be no prejudice to the opposite-party."
Even if there is some variation in the written statements and the respondents' evidence, the learned counsel for the appellant failed to show that any prejudice was caused to him or he was taken by surprise' by this evidence. This, the argument that the evidence is at variance with! The written statement, has no merit.
6. I now proceed to discuss the appellant's argument that the evidence on the record, does not fulfil the requirements of legal waiver. The judgment in Murida v. Hayat Muhammad describes the waiver as an intentional relinquishment of a known right. Usually the same connotation is attributed to this term in the legal parlance. Such relinquishment may be implied from the conduct of a party. As mentioned earlier, the respondents unequivocally pleaded inducement. It is based on the appellant's holding out to them that he would not pre-empt the sales. There was thus, a representation to the respondents by the appellant, not to assert his right of pre-emption. The intention to waive is a question of fact. Reference in this connection may made to Sikandar Hayat v.
Master Fazal Karim (2). The respondents' evidence on the issue of waiver, was considered trustworthy, the learned Courts below. The contention that the evidence falls short of requirements of legal waiver is misconceived. The findings on the question of waiver, being a finding of fact, supported by material on the record, cannot be disturbed in second appeal. As laid down in Abdul Majeed and others v. Khalil Ahmad (3) under section 100, C. P. C. The High Court has no jurisdiction to set aside such a finding,
7. As regards the appellant's reliance on Bindu Khan v. Indar Narain and others, the ratio of this judgment is that a person entitled to exercise right of pre-emption, is not precluded from bringing the suit, unless it is shown that offer to purchase the property was made to him before a complete agreement was entered into between the vendor and the vendee. The record, however, does not justify application of the precedent. In his statement, Abdul Aziz respondent positively asserted that before the sale transactions he went to the appellant and asked him to purchase the land.
Seemingly, this visit took place, when the bargain between the vendor and the vendees had been settled. In any case it was for the appellant to have shown through the respondents' cross- examination that when the offer was made to him, the bargain had not been finalized. However, on this point the respondents were not subjected to cross-examination.
(1) PLD 1963 SC 553 (2) PLD 1971 SC 730
(3) PLD 1955 I C 38
8. The Supreme Court's judgment in Baqri and others v. Salehon remains to be discussed. It may be added that the learned counsel for the respondents also heavily placed reliance on this precedent.
In this case, a number of rulings were cited from both sides and the principles adduced from the consideration thereof, have been summed up at page 138 of the report. The rule enunciated therein on which both the parties relied, is :-
(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 party of the plaintiff, showing that he is not interested in the purchase of the property."
' After going through the material on the record I do not feel least persuaded that the respondents' evidence in any manner, is hit by the ratio of this judgment.
9. The appellant's last argument that the written statements are impregnated with inconsistent pleas may now be looked into. There is no quarrel with the proposition that the inclusion of inconsistent allegations of fact, in the pleading renders it defective. However, the criterion for holding that the two allegations of fact constitute inconsistent pleas, is that such allegations cannot be verified by the same person. In my opinion such a situation does not obtain in these cases. After examining the written statements I do not find any such inconsistency. It appears to be a case of clumsy drafting in a muffasal Court. The two reports in PLD 1973 Lah. 47 and PLD 1971 Kar. 505 have no bearing on the facts of these appeals. It may be stated that the last mentioned ruling is based on Budho v. Ghulam Shah but under this authority of the Supreme Court, the asperity of the rule of variation, has exceedingly whittled down.
10. As all the contentions raised on behalf of the appellant have failed, these appeals having been found without any merit are dismissed, leaving the parties to bear their own costs.