' The appellants purchased agricultural land measuring 99 Kanals 13 Marlas, situated in village Chakrala, Tehsil Shahpur, District Sargodha, from one Mazhar Ali son of Mumtaz Ali Khan for Rs,62,500 vide mutation No, 127, dated 18-7-1971. The respondents, who claim to be the owners in the estate in which the suit land was situated, filed a suit to pre-empt the sale contending that the appellants had paid Rs,50,000 only to the vendor and that the amount of Rs,62,500, stated in the mutation as price of the land, was fictitious. The suit was contested by the appellants on a number of grounds which gave rise to the following issues:--
(1) Whether the plaintiff lacks cause of action to file this suit? 0 .P. D
(2) Whether the suit is time barred? O.P.D.
(3) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? If so what is the correct valuation? O.P. Parties.
(4) Whether the suit is for partial pre-emption? If so what is its effect? O.P.D.
(5) Whether the plaintiffs have waived their right of pre-emption? O.P.D.
(6) Whether the defendant-vendees have made improvement upon the suit land? If so to what amount the defendant-vendees are entitled? O.P.D.
(7) Whether the suit land is incorrectly described? If so what is correct description? O.P.D.
(8) Whether the plaintiff has superior right of pre-emption as against the defendant vendees?
O.P.P.
(9) Whether the ostensible sale price of Rs,62,500 has been fixed in good faith and is actually paid?
O.P.D.
(10) If issue No, 9 is not proved, then what was the market value of the suit land at the time of sale?
O.P. Parties.
(11) Relief.
2. The learned trial Court after recording the evidence of the parties and hearing the arguments of their counsel, decided issues Nos. 1 to 7 against the appellants. Issues Nos. 8 and 9 were found in favour of the respondents and the appellants respectively and as a result of the above findings, the respondents' suit was decreed on 22-11-1973 subject to the condition that the respondents shall deposit in Court Rs,62,500 inclusive of the 1/5th pre-emption money already deposited by them before 20-12-1973 failing which their suit shall be dismissed with costs. The appellants filed an appeal against the judgment and decree of the trial Court challenging the findings of the trial Court on all the issues except issues Nos. 6 and 9. At the time of hearing of the appeal, their counsel, however, confined his attack to the findings on issues Nos. 1, 3 and 8 only. The learned District Judge affirmed the findings of the trial Court on the aforementioned issues and dismissed the appeal vide his judgment, dated 6-5-1975. Feeling aggrieved by the judgments and decrees of the trial Court and the appellate Court, the appellants have preferred the present appeal in this Court contending that the sale of the disputed land was not pre-emptible as it was covered by Notification No, 4616-71/3316-LR-III, dated 7-1-1972 issued by the Board of Revenue Punjab in exercise of the powers conferred by section 8(2) of the Punjab Pre-emption Act, 1913, whereby it was declared that for a period of three years, no right of pre-emption shall exist in respect of the sale of agricultural land not exceeding 50 Acres canal irrigated and 100 Acres other than the canal irrigated area. The appellants have also assailed the findings of the Courts below on issues Nos. 1, 5, 6 and 8. The appeal was primarily admitted to examine the legal effect of the notification referred to above on the respondents' suit, but the learned counsel appearing on behalf of the appellants has also addressed arguments on the other grounds stated in the memorandum of appeal.
3. Learned counsel for the appellants has contended that the area of the land purchased by the appellants being less than 100 Acres, as it is not situated in the canal irrigated area, could not be the subject-matter of the pre-emption suit in view of the notification, dated 7-1-1972 issued by the Board of Revenue Punjab under section 8(2) of the Punjab Pre-emption Act. Although, the sale in question was effected on 18-7-1971, the suit instituted by the respondents on 17-7-1972 was not competent as the exemption notification under section 8(2) of the Punjab Pre-emption Act had been enforced w.e.f, 7-1-1972, the date when the said notification was published in the Gazette.
Learned counsel for the respondents on the other hand, has submitted that the notification relied upon by the learned counsel for the respondents is not applicable to the sale of the suit land as the said notification is applicable in Sargodha District only to the land situated in Khushab Tehsil, whereas the suit land is situated in Shahpur Tehsil of District Sargodha. Learned counsel for the respondent has also referred to the Punjab Pre-emption (Removal of Doubts) Ordinance, 1972, by which it was declared that the notification issued by the Board of Revenue Punjab, published in the Gazette on 7-1-1972 would be applicable to such sales in respect of agricultural land, which are effected in favour of persons displaced from Mianwali District by the construction of Chashma barrage. The appellants evidently do not fall in the category of persons displaced from Mianwali District by the construction of Chashma barrage nor there is any certificate of the Commissioner, Sargodha Division to that effect. The respondents' right to pre-empt the sale of the suit land is, therefore, not affected by the notification relied upon by the appellants' counsel.
4. After going through the notification dated 7-1-1972 and the provisions of the Punjab Pre-emption (Removal of Doubts) Ordinance, 1972, it has been found that the sale of the suit land effected in favour of the appellants is not covered by the notification of 7-1-1972 and the respondents' rights to pre-empt the said sale remains un-affected after the issuance of the said notification, because neither the suit land is situated in Tehsil Khushab of Sargodha District nor has it been purchased by a person displaced from Mianwali District by the construction of Chashma barrage. The requisite certificate of the Commissioner, Sargodha Division, is also wanting in this case.
5. The appellants have challenged the respondent's right of pre-emption on two grounds as stated by them in their written statement namely, that Muhammad Hayat and Sher Muhammad appellants are co-sharers in the same Khata out of which the suit land has been sold and that they were cultivating the land as tenants at the time of sale. Evidently, the appellant's cannot defeat the respondents' right o pre-emption on the plea that two of them also own land in the same Khata out of which the suit land was sold because by joining persons in the sale, who do not own any such land, the right available to the appellants to purchase the land in preference to the pre- emptors is lost under the principle of sinker. It may be noticed that there is no evidence on the record to show that Muhammad Hayat and Sher Muhammad own any land in the Khata out of which the land in dispute has been A sold. The appellants are not even owners in the estate and the evidence produced by them in this behalf consisting of copy of sale deed (Exh. D/3) and copies from the register (Exh. D/4 and Exh. L/5) only show that Muhammad Hayat and Sher Muhammad appellants were the owners of houses in village Chakrala which is not sufficient to defeat the respondents' right of pre-emption, who own agricultural land in the estate in which the suit land is situated.
6. Learned counsel for the appellants has vehemently argued that the appellants can successfully resist the respondents' claim to pre-empt the sale of the suit land as by virtue of their status as tenants, they have a preferential right to purchase the suit land in view of the provisions of paragraph 25(3) clause (d) of the Land Reforms Regulation, 1972 (M.L.R. 115). Learned counsel for the appellants has contended that although on the date of sale the appellants did not possess the first right of pre-emption in respect of the suit land occupied by them as tenants, as the amendment in the Land Reforms Regulation, 1972 whereby the first right of pre-emption was conferred on the tenants became effective from 11-3-1972, the respondents' claim of superior right of pre-emption based on the ownership in the estate, could not be enforced as they had instituted a suit to enforce the said claim on 17-7-1972 after the aforementioned amendment in the Land Reforms Regulation. Learned counsel for the respondents have refuted the above argument on the ground that all the appellants were not cultivating the suit land at the time of the sale and further that this amendment made in paragraph 25 of the Land Reforms Regulation relied upon by the appellants was of no consequence as the appellants had ceased to be the tenants of the suit land when the said amendment became effective.
7. A perusal of the record shows that all the appellants were not in possession of the suit land as tenants at the time of sale. Lease deeds marked Exh.D/1 and Exh.D/2 disclose that Sher Khan appellant had obtained some land from one Mst. Masooda Bano Begum in 1967 and 1970 on lease and presumably under the said lease, he was shown in possession of the suit land as tenant at the time of sale. The entries in the Khasra Girdawari (Exh. D/6) further reveal that the suit land was actually cultivated by Khan Muhammad son of Lala, Noor Muhammad son of Khan Muhammad and Allah Yar son of Muhammad as sub-tenants of Sher Muhammad. The other appellants never cultivated the land as tenants prior to the sale and their contention that the land was cultivated by them alongwith Sher Muhammad, though the name of Sher Muhammad alone was recorded in the Khasra Girdawari stands repelled by their own documentary evidence, referred to above. The fact that the disputed land was in possession of Sher Muhammad appellant as tenant at the time of sale is of not much consequence as the other appellants, who were not in possession of the land as tenant, cannot derive any benefit. Even Sher Muhammad appellant cannot plead his tenancy as a ground for defeating the respondents' right of pre-emption because under the principle of sinker, he shall also be deemed to have lost his right o pre-emption, if any, by joining the other appellants in the sale. The amendment made in paragraph 25 of the Land Reforms Regulation, 1972, on which reliance has been placed by learned counsel for the appellants, is even otherwise not relevant in the present case because the first right of pre-emption conferred on the tenant in respect of the land held by him as a tenant was not available on the date when the suit land was sold. As the amendment in paragraph 25 of the aforementioned regulation was not given retrospective effect, Sher Muhammad appellant, who was shown in possession of the suit land as tenant on the date of sale, could not derive any benefit as after purchasing the land in dispute, he had ceased to be a tenant in the said land on the day when the amendment was made in the Land Reforms Regulation, 1972. The respondent's right of pre-emption was, therefore, not affected by the amendment of paragraph 25 of the Land Reforms Regulation, 1972, and the Courts below have rightly decided issue No, 8 in favour of the respondents.
8. Learned counsel for the appellants has contended that the respondents had waived their right to pre-empt the sale of the disputed land because they had knowledge of the sale in favour of the appellants and that they were not willing to purchase it at the price demanded by the vendor.
Before the land was purchased by the appellants, the vendor had got a notice published in the newspaper offering the land for sale. Even a proclamation by beat of drum, offering the sale of land, was made in the village at the instance of the vendor.
9. Learned counsel for the respondents, on the other hand, has stated that the respondents had no knowledge of the sale of the disputed land in favour of the appellants nor any proclamation by beat of drum was made. The appellants have failed to prove that the notice was published in the newspaper prior to the sale in their favour as no such notice has been placed on the record.
10. The appellants have produced oral evidence to prove their contention that the respondents had waived their right of pre-emption as they were not willing to purchase the land at the price demanded by the vendor and further that they had shown no interest in purchasing the land when notice was published in the newspaper and proclamation by beat of drum was made in the village prior to sale of the land in favour of the appellants. The learned trial Court has not attached much importance to the above evidence and has come to the conclusion that the respondents had not waived their right of pre-emption merely because they had the knowledge of the sale in question.
The learned District Judge, has, however, not adverted to the plea of waiver raised by the appellants during the trial because it appears from the judgment that the appellants' counsel had confined his arguments to the findings on issues Nos. 1, 3 and 8 only. Issue No, 5 which dealt with the plea of waiver, raised by the appellants, was not touched by him during the arguments. The oral evidence on which reliance has been placed by the learned counsel for the appellants while challenging the finding of the learned trial Court on issue No, 5, is of not much value, because the appellants have neither produced the copy of the newspaper in which the notice offering the land for sale by the vendor was published nor have they examined the person, who made the proclamation by beat of drum. Noor Muhammad respondent has categorically denied the appellants assertion about the publication of notice in the newspaper and the proclamation by beat of drum in the village. He has also denied that he had any knowledge about the sale in dispute. It is now a well-settled rule of law that there must be clear and cogent evidence to deprive the pre-emptor of his right of pre-emption on the plea that he has waived his right of pre-emption.
Mere oral evidence that the pre-emptor had knowledge of the sale, would not be enough to establish that he had relinquished his right to pre-empt the sale. Reference in this behalf may be made to Kidar Nath v. Bagh Singh AIR 1937 Lah. 604 and Mustaqim v. Sher Bahadur PLD 1962 (W.P.)
Pesh.
14. There must be a positive act of relinquishment or a conduct as would warrant an inference of relinquishment of the right. The evidence produced by the appellants in the present case did not fulfil the above requirement and their plea that the respondents had waived their right of pre- emption had been rightly rejected by the learned trial Court.
11. Learned counsel for the appellants has also questioned the findings of the learned trial Court on issue No, 6 which dealt with the improvements made by the appellants on the disputed land after its sale in their favour. Learned counsel for the respondents has, however, raised an objection that the appellants are not entitled to dispute the finding on issue No, 6 as they had not challenged the finding of the learned trial Court on the said issue before the first appellate Court. According to the learned counsel for the respondents, the finding on issue No, 6 shall be deemed to be a concurrent finding of fact which cannot be questioned in second appeal under section 100, C.P.C. He has relied on Pathana v. Mst. Wasai PLD 1965 SC 134 and Mst. Allah Rakhi v. Mst. Sakina Bibi PLD 1969 Lah. 168 in this behalf.
13. The appellants admittedly did not challenge the finding of the learned trial Court on issue No, 6 in the first appeal which indicated that the decision of the trial Court with regard to their claim for compensation for the improvements effected by them in the suit land was acceptable to them.
The question whether the appellants had made any improvements in the disputed land, after its sale and before institution of the suit by the respondents, is purely a question of fact and has been determined by the learned trial Court in the light of evidence produced by the parties. The appellants cannot be permitted to challenge the above finding in this Court particularly when they had not assailed it in the first appellate Court. Even otherwise the evidence produced by the appellants, which consists of oral statements of witnesses examined by them, is hardly sufficient to sustain their claim for the improvements allegedly effected by them in the suit land. It may be noticed that in the written statement, the appellants had stated that they had spent rupees 7,000 on the improvements made by them, but according to Fazal-ur-Rahman (D.W.2), the amount spent on the improvements was Rs,8,000 while according to Sher Muhammad respondent, it was between 7,000 to 8,000 rupees and according Nathu Khan (D.W.1) it was between 5,000 rupees to 7,000 rupees. On the basis of such evidence, it was not possible for the trial Court t E uphold the appellants' claim for compensation for the improvements effected by them in the suit land. The finding of the learned trial Court on issue No, 5 is, therefore, maintained.
' For the reasons stated above, there is no force in this appeal which is accordingly dismissed with costs.