1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of a learned Single Judge of the High Court of West Pakistan, dismissing a Second Appeal.
2. The appeal arose out of a suit filed by respondent No. 1 to pre-empt a sale of some 194 kanals 10 marlas of land by the predecessor-in-interest of respondents Nos. 2 to 4, by a private auction in favour of the appellants, held in the year 1955.
3. It appears that the land was put up to a private auction first on the 13th May 1955, and then again on the 16th May 1955.
4. On the latter date the land was sold to the appellants who had offered the highest bid of Rs. 30,000 for the land. Respondent No. 1 claimed a superior right to pre-empt on the basis of his co- ownership in the revenue estate in which the land in question was situated, but his claim for pre- emption was resisted on the ground that since he had himself unsuccessfully participated in the auction he was estopped from asserting his right to pre-emption.
5. The trial Court found that respondent No. 1 had a superior right of pre-emption but held that he was estopped from asserting that right by reason of his participation in the auction, and dismissed the suit.
6. On appeal, however, the learned District Judge, Sargodha reversed the decree passed by the trial Court and granted the decree, for pre-emption on the ground that participation in the auction was by itself not sufficient to amount to a waiver of the right of pre-emption. This decision was upheld in Second Appeal by a learned Single Judge of the High Court of West Pakistan relying on some earlier decisions of the Lahore High Court itself. The learned Judge also refused to certify the case as fit for appeal under clause 10 of the Letters Patent.
7. Leave was granted on the ground that there was a conflict of decisions in the said High Court itself on the question of estoppel.
8. Ch. Mohammad Anwar Buttar, learned Advocate appearing on behalf of the appellants, has contended that the participation of respondent No. 1 at the auction sale of the land in question, and his failure to offer the highest bid at the auction, amounted to waiver on the part of the respondent.
9. A number of decisions have been cited before us both for and against the contention, which we shall hereafter refer to.
10. On behalf of the defendants-appellants evidence had been led to show that there were in fact private auctions to sell the land in question and that in the auction held on the 16th May 1955, Sher Ahmed Khan, predecessor-in-interest of respondents Nos. 2 to 4 sold the land to the appellants who had offered the highest bid of Rs. 30,000. Respondent No. 1 had offered bid up to Rs. 28,000, and did not go further.
11. We proceed on the basis of the finding of fact that respondent No. 1 did participate in the two auctions which ultimately led to the sale of the land in question. The mutation of sale was attested in favour of the appellants on the 2nd of June 1955. The suit for pre-emption was filed in May 1956.
12. In the facts and circumstances of the case the right of pre-emption arose on the sale of the property to the appellants This view finds support from sections 15 and 21 of the Punjab Pre- emption Act, 1913, which provides as follows :---- Section 15. Persons in whom right of pre-emption rests in respect of sales of agricultural land and village immovable property.--Subject to the provisions in section 14, the right of pre-emption in respect of agricultural land and village immovable property shall vest :-
(a) Where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who, but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold ;
(b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly ;- firstly, in the lineal descendants of the vendor in order of succession secondly, in the co-sharers, if any who are agnates in order of succession ; thirdly, in the persons, not included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold: Provided that in case where the sale is by a Muslim; the firstly and secondly shall be inapplicable, and the thirdly shall read as follows: thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold ; fourthly, in the co-sharers ;
(c) if no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it : - firstly, when the sale affects the superior or inferior pro--prietary right and the superior right is sold, in the inferior proprietors and when the inferior right is sold, in the superior proprietors ; secondly, in the owners of the path or other sub-division of the estate within the limits of which such land or property is situate ; thirdly, in the owners of the estate ; fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or property ; fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situate.
13. Section 21. Suit for pre-emption.-Any person entitled to a right of pre-emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right."
14. Section 30 of the Act which prescribes the period of limita--tion for a suit for enforcement of the right of pre-emption also lends support to this view.
15. SUPREME COURT In the absence of any notice as prescribed in section 19 of the Act, no question of foreclosure of the right of pre-emption arises.
16. In PLD 1967 Lah. 1171 it has been observed that until a sale actually takes place, no person can assume to have a right .Of pre-emption which is not a right in property although it is a vested statutory right. We agree with this view.
17. To constitute a waiver there must be some conscious giving up of a right. It has been so observed in the case of Burmah Oil Co. Ltd. v. Trustees (PLD 1961 SC 452). In the present case we can find nothing on the record which tends to show that plaintiff-respondent No. 1 was not minded to assert his right of pre-emption. On the contrary, the evidence shows that the respondent participated in both the auctions and offered bid up to its. 28,000 at the second auction in order to purchase the property. The mere fact, however, that he did not outbid the highest bid of the appellants does not show that he was no longer interested in claiming the right to pre-empt the property in dispute.
18. This view finds support from the case of Ahmad Jan and others v. Kishen Chand and others (AIR 1919 Lah. 368). In the case under report the property as sold by the judgment-debtor in virtue of a certificate granted to him icy the executing Court under Order XXI, rule 83(2) of the Code of Civil Procedure. It was a case of private sale conducted by auction which was attended by the person who claimed pre-emption, and who participated in it, but refrained from bidding up against the actual purchaser. It was held that the failure of c a person entitled to pre-empt to outbid the purchaser did not amount to waiver.
19. In the case of Alam Sher Khan v. Allah Din (AIR 1939 Lah. 517) where the land was sold at a public auction the following observations were made by the Court :---- "It is clear that the decisions of this Court are practically all against the view that a pre-emptor is bound to bid at an auction sale and that if he does not do so, he loses his right of pre-emption, the principle being that he is entitled to pre-empt the property at the price fixed and paid, and is not bound to make that price higher by competitive bidding."
20. 'This case represents the consistent view on the point in the Punjab.
21. There are cases in which either on account of the express refusal of the pre-emptor to purchase the property or his clears conduct which showed that he was not at all interested in the purchase of the property, Courts have held that there was to waiver. In Sardar Mohammad v. Khuda Bakhsh and another (AIR 1935 Lah. 884) the pre-emptor lived in an adjoining house and he did not evince any interest In the purchase of the property when it was put up to auction, and finally made a ridiculous offer to purchase the property. It was held that the conduct of the pre-emptor amounted to waiver.
22. In the case of Shah Bodhraj v. Sundar Singh and another (100 P R 1885) where the plaintiff, a professional petition-writer, had made a rough draft of the deed of sale for the defendant, it was held that there was no waiver. In the case under report 47 P R 1873 was not followed because the decision was given before the Punjab Laws Act, 1872.
23. Similarly, in the case of Fateh Chand and others v. Kirpa Singly and others (48 P R 1912) where the two plaintiff pre-emptors were found to have been present and helped in the sale negotiations and one of them assisted in demarcating the land sold out of a large field, it was held that the plaintiffs by their conduct actively induced in the vendees' mind the belief that they were perfectly agreeable to the purchase by the vendees and did not intend to enforce their rights, and this amounted to waiver on the part of the plaintiffs.
24. In Kanshi Ram Sharma and another v. Lahori Ram and another (AIR 1938 Lah. 273) which relied on AIR 1929 Lah. 265 and AIR 1935 Lah. 884, it was held that the right of pre-emption could be waived.
25. In the case under review the pre-emptor refused to purchase the property when it was offered to him for purchase before a definite contract of sale had been made.
26. In 37 All. 262 the vendor offered the property to the pre-emptor who only offered Rs. 160 for it and refused to give more. The vendor then sold it for Rs. 235 to the defendant. It was held that the conduct of the plaintiff amounted to refusal to purchase, and amounted to waiver. The facts in 42 All. 402 were different and the decision in the case proceeded on the ground that the sale not being voluntary, there was no right of pre-emption under the Village Wajibul Arz. The observa--tion of the Court on the question of waiver were mere obiter dicta.
27. To sum up the decisions lay down the following principles:----
(i) Right of pre-emption arises on sale of the property in question. 1 his is the general law.
(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 part of the plaintiff, showing that he is not interested in the purchase of the property.
28. This is consistent with the principle of foreclosure of right of pre-emption as envisaged in section 19 of the said Act.
(iii) 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."
29. Applying the principles laid down in the cases discussed above it is evident that there was no waiver in the present case. Respondent No. 1 never refused to purchase the property at the price it was sold nor was there any act on his part which could reasonably be construed to constitute waiver of his right of pre-emption. On the contrary, as we have noticed already, his participation in the two auctions and his bid of Rs. 28,000 are clear indications of his intention to purchase the property.
30. On behalf of the appellants it was also contended that certain Notification issued under section 8 of the said Act has abolished the right of pre-emption.
31. The Notification has not been produced before us and it was never mentioned before any Court and not even mentioned in the petition for leave or in the concise statement. We cannot therefore, allow him to raise this point at this stage.
32. The appeal is accordingly dismissed without arty order as to costs.