' This regular second appeal is directed against the judgment and decree, dated 31st of January, 1981, passed by the learned District Judge, Sargodha, whereby he accepted the appeal of the respondents and set aside the judgment and decree passed in favour of the appellant by the learned Civil Judge, Sargodha, on 9th of July, 1980.
2. Agricultural land measuring 731 Kanals situated in Mauza Sajhari Khan, Tehsil Shahpur, District Sargodha, was sold by Ghulam Muhammad, its owner, to the respondents by a registered sale- deed, dated 13th of May, 1976, ostensibly for Rs,70,000. The appellant instituted a suit to pre-empt the sale alleging that he being the son of the vendor and a co-sharer in the Khata of the land possessed superior right of pre-emption and that the, land had been sold for Rs,50,000 but inflated sale price had been mentioned in the sale-deed to defeat his right of pre-emption.
3. The respondents contested the suit controverting the allegations of the appellant. He raised legal objections also to the effect that the suit was barred by time, that the appellant was estopped by his conduct from bringing the suit as he had participated in the transaction of sale thereby waiving his right of pre-emption, that the description of the land as given in the plaint was not correct and that the suit had not been properly valued for purposes of court-fee and jurisdiction.
4. The trial Court framed the following issues:-
(I) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction? If so, with what effect? O.P.D.
(ii) Whether the description of pre-empted property given in plaint is incorrect, if so, with what effect? O.P.D.
(iii) Whether the plaintiff has got superior right qua the defendants? O.P.P.
(iv) Whether the plaintiff is estopped to bring the action? O.P.D.
(v) Whether the sum of Rs,70,000 has been fixed in good faith or actually paid as sale price? O.P.D.
(vi) What was the market value of suit property at the time of pre-empted transaction?" O.P.P.
(vii) Relief
5. Subsequently, the learned counsel for the respondents made a statement admitting that the appellant being the son of the vendor had a superior right of pre-emption qua the respondents, that the land had in fact been sold for Rs,50,000 and that the description of the land as given in the plaint was correct.Ln view of this statement, the learned trial Court, vide its order, dated 9th of July, 1980, deleted issues Nos. 2, 3, 5 and 6. On other issues, the parties adduced their respective evidence for and against the same. The learned trial Court held that the suit had been properly valued for purposes of court-fee and jurisdiction and that the appellant was not estopped from pre-empting the sale and consequently decreed the suit in favour of the appellant on payment of Rs,50,000.
6. Feeling aggrieved, the respondents preferred an appeal which was heard by the learned District Judge, Sargodha. The finding of the trial Court on issue No,4 alone was assailed before him. He after discussing in detail the evidence on record differed with the finding of the trial Court and held that the appellant had waived his right of pe-emption by his conduct as he had not only actively participated in the negotiations for the deal and the transaction itself but also manifestly done several other overt acts in relation thereto which amounted to a clear waiver of his right. According to him, the evidence which was produced by the respondents comprised statements of disinterested and trustworthy witnesses and was overwhelming and almost unimpeachable.
Accordingly, he accepted the appeal of the respondents and dismissed the suit of the appellant.
The appellant has impugned the judgment and decree of the learned lower appellate Court in the second appeal.
7. The case of the respondents rests on the testimony of Muhammad Akbar D.W.8, one of them, as corroborated by Karam Hussain Shah D.W.4, Abdul Jabbar D.W.5, Habibur Rehman D.W.6 and Ghulam Muhammad D.W.
7. Abdul Jabbar D.W.5 was the scriber and Habibur Rehman D.W.6. Was an attesting witness of the agreement to sell (Exh. D.5) and the receipt (Exh.D.6) for Rs,20,000 as earnest money. Karam Hussain. Shah D.W.5 was an attesting witness of the registration of the sale-deed (Exh.D.3) and Habibur Rehman D.W.6 was its marginal witness. Karam Hussain Shah D.W.4 stated that the appellant took part in the negotiations for sale and the amount of Rs,20,000 as earnest money was in fact received by the appellant who after counting the same handed it over to the vendor, his father. The appellant was also present at the time of registration of the sale-deed of the land as on the same date the sale-deed of other land executed in his favour by his father was also presented for registration. He further stated that the sum of Rs,30,000 as the remaining sale price which was paid at the time of the registration of the sale-deed was also received by the appellant. Similar were the statements of Abdul Jabbar D.W.5 and Habibur Rehman D.W.6. Habibur Rehman D.W.6 further stated that at the time of the registration of the sale-deed the appellant had assured that he would not pre-empt the sale. Ghulam Muhammad D.W.7 deposed that the appellant was present at the time of the deal and the payment of the earnest money. All of them were independent witnesses and they were not attributed any malice in cross-examination for giving false evidence against the appellant. Muhammad Akbar D.W.8, one of the respondents, also testified that at the time of the deal the appellant was present alongwith the vendor and he had in fact counted the earnest money amounting to Rs,20,000. He further stated that at the time of the registration of the sale-deed also the appellant was present and he had counted the remaining sale price. In rebuttal to the above evidence the appellant examined only himself as D.W.3. He denied that he had received the earnest money at the time of the deal and the remaining sale price at the time of the registration of the sale-deed. However, his solitary statement did not furnish adequate rebuttal to the evidence led by the respondents. The learned lower appellate Court was, therefore, perfectly justified in arriving at the conclusion that the appellant had actively participated in the negotiations for the deal and the transaction itself and his conduct amounted to waiver of his right of pre-emption.
8. The above conclusion of the learned lower appellate Court is fortified by Bhagat Ram v. Raghbar Dial and others AIR 1925 Lah. 57 cited by the learned counsel for the respondents. It was observed in this authority that where the pre-emptor himself assisted in arranging the sale and was not merely a silent spectator of the actual transaction, he would be deemed to have acquiesced and was, therefore, debarred from pre-empting the sale. This authority was followed in Ghulam Muhammad v. Muhammad Bakhsh etc. 1980 CLC 2063. The same principle was enunciated in Fateh Chand and others v. Kirpa Singh and others 13 Indian Cases 561. It was held that where a pre- emptor assisted in negotiating a sale being himself present at the time he must be deemed to have waived his right of pre-emption, as by his conduct he actively brought about in the vendee's mind that he was perfectly agreeable to the purchase by the vendee and did not intend to enforce his right.
9. In view of the foreging reasons, the finding of the learned lower appellate Court that the appellant had by his conduct waived his right of pre-emption is unexceptionable. I, therefore, concur in the same and finding no merit in this the same, leaving the parties to bear their own costs.