' In this regular second appeal the vendees appellants have challenged the judgment and decree dated 6-12-1979 of the Additional District Judge, Sahiwal whereby the respondents pre-emptors' appeal against the judgment and decree dated 7-1-1978 of Civil Judge, Depalpur, dismissing their suit was allowed.
2. The appellants purchased suit land measuring 33 Kanals 19 Marlas situated in village Daula Mustaqeem, Tehsil Depalpur, District Sahiwal from Maula Bakhsh son of Khan Muhammad for Rs, 25,600 vide mutation of sale No, 92, dated 24-3-1973. The respondents instituted the suit to pre- empter this sale on 1-9-1973 claiming superior right of pre-emptor on the ground of being collaterals of Maula Bakhsh. They contended that the land in question had been purchased by the appellants for Rs, 5,000 only and that the price of Rs, 25,600 shown in the mutation of sale was fictitious and was incorporated with a view to defeating their right of pre-emption. The suit was resisted by the appellants inter alia on the ground that the respondents had waived their right of pre-emption as the bargain of sale was struck through them and they were present at the time of attestation of the mutation of sale. They controverted the respondents' allegation that the suit land had been purchased by them for Rs, 5,000. According to them the land was purchased for Rs, 25,600, which amount were fixed in good faith as the price of the land and was actually paid. From the pleadings of the parties the learned trial Court framed the following issues:-
(1) Whether the plaintiffs have waived their right of pre-emption and are estopped to file this suit?
(2) Whether Rs, 25,600 was fixed in good faith or actually paid at the time of sale?
(3) If issue No, 2 is not proved, what was the market value of the suit land?
(4) Whether the plaintiffs have superior right of pre-emption?
(5) Relief.
3. The parties led evidence in support of their contentions. The learned trial Court found that the appellants had failed to prove that the respondents had waived their right of pre-emption. While dealing with the plea of waiver under issue No,1 the learned trial Court observed that the respondents' suit was liable to be dismissed as the same had not been instituted within the prescribed period of limitation because the appellants had acquired the possession of the land before the attestation of mutation of sale and the respondents had filed the suit after more than one year of the change of possession. Under issue No,4 the learned trial Court, however, found that the respondents had proved their superior right of pre-emption against the appellants. The payment of Rs, 25,600 as price of the suit land by the appellants was accepted by the learned trial Court and issue No, 2 was accordingly decided in appellants' favour. In view of the observations made by the learned trial Court, while disposing of issue No,1, the respondents' suit was dismissed on the ground of being barred by time. The respondents filed appeal against judgment and decree of the learned trial Court which was accepted by the learned Additional District Judge on 6-12-1979 and their suit was decreed on payment of Rs, 25,600 as pre-emption money.
4. In the Memorandum of Appeal filed in this Court the appellants have contended that the view taken ' by the learned first appellate Court that in the absence of any issue on the point of limitation the learned trial Court was not justified in holding the respondents' suit as barred by time is not legally tenable because even in the absence of issue on the point of limitation the learned trial Court was legally competent to examine whether the suit filed by the respondents was within time. The appellants have also contended that the suit instituted by the respondents in the civil Court was not maintainable in view of provisions of sub-paragraph (5) of paragraph 25 of the Land Reforms Regulation, 1972 which was added by the Land Reforms (Amendment) Ordinance, 1976 (Ordinance XX of 1976). According to the appellants the question of jurisdiction of the Court to try the suit can be raised by them even at the stage of second appeal. The main ground, on which the judgment and decree of the learned Additional District Judge is assailed by the appellant is that the learned first appellate Court has failed to discuss the appellants' evidence while rejecting their plea of waiver and deciding issue No,5 against them.
5. Although the appeal was admitted only to consider the finding of learned Additional District Judge with regard to the appellants' plea of waiver the other grounds stated by the appellants in the Memorandum of appeal have also been considered at the time of hearing of appeal. The appellants' contention that the learned trial Court was legally competent to decide the question of limitation in the present case is without force because the appellants had not pleaded in their written statement that the respondents' suit was barred by time as they had acquired the possession of the suit land before the attestation of the mutation of sale in their favour. In the absence of any such plea the learned trial Court was not justified in dealing with the question of limitation particularly when no issue had been framed on the point of limitation. The view taken by the learned first appellate Court, reversing the learned trial Court's finding on the point of limitation, is correct.
' The question of jurisdiction of the trial Court to entertain the respondents' suit raised by the appellants for the first time does not merit consideration for the simple reason that the jurisdiction of the civil Court in pre-emption suits relating to agricultural land is excluded only when the right of pre-emption is claimed by the pre-emptor on the ground that the land sold was in his possession as tenant at the time of its sale. In the present case the suit to enforce the right of pre-emption was instituted by the respondents on the basis of their relationship with the vendor. The fact that the suit could be resisted by the vendees on the ground that they were in possession of the land as tenants when it was purchased by them would not affect the jurisdiction of the civil Court and the provisions of sub-paragraph (5) of paragraph 25 of the Land Reforms Regulation, 1972 would not be attracted. Even otherwise the plea of want of jurisdiction cannot be considered as the appellants had not resisted the respondents' claim of superior right of pre-emption on the ground that being tenants in possession of the suit land they had a preferential right to purchase it.
6. The plea of waiver taken by the appellants has not found favour with the Courts below as the evidence produced by them has not been considered sufficient for holding that the respondents had relinquished their right to pre-empt the sale. The appellants' contention is that the bargain of sale was struck through the appellants but the evidence produced is to the effect that the respondents were present at the time of attestation of the mutation of sale. An offer was made to them to purchase the land but they had declined. According to Atta Muhammad D.W.1 the appellants were present at the time of attestation of the mutation of sale while Jamal Din D.W.2 says that the appellants' brother Gulzar was only present at that time. The statement of Jamal Din finds support from the proceedings of the attestation of mutation of sale where the presence of Gulzar Pattidar has been shown. Muhammad Anwar D.W.3 has stated that Muhammad Yar and Ahmed Yar appellants were also present along with Gulzar when the mutation was sanctioned. This statement is not only at variance with the one made by Jamal Din, D.W.2 but is also contrary to the proceedings recorded by the Revenue Officer at the time of attestation of the mutation. Sakhi Muhammad, one of the appellants, who appeared as D.W.4 made no reference to the presence of the appellants at the time of attestation of the mutation of sale. According to him the respondents had refused to purchase the land when it was offered to them before its sale in favour of the appellants. On the basis of the above evidence both the learned trial Court and the learned first appellate Court have rightly concluded that the respondents have not waived their right of pre- emption. It is not necessary to reiterate the well-settled proposition of law that very strong and cogent evidence is required to prove that the pre-emptor has waived his right of pre-emption. The mere presence of the pre-emptor at the time of settlement of bargain or even at the time of registration of the sale-deed or attestation of the mutation of sale would not preclude him from exercising his right of pre-emption. It must be established that he had intentionally relinquished his right to pre-empt the sale effected in his presence.
' For the forgoing reasons there is no force in this appeal, which is accordingly dismissed with coats.