This regular second appeal has been brought by the defendants against whom a suit for possession through pre-emption instituted by the respondent was decreed on 4-7-1972 by the Administrative Civil Judge, Bahawalnagar. The first appeal taken by the appellants-defendants also failed and the learned District Judge, Bahawalnagar, affirmed the decree of the trial Court, vide judgment dated 12-9-1972.
2. The facts giving rise to the litigation are, that the appellants---defendants purchased land measuring 168 Kanals situated in Ahmedpur Mecload Ganj, Tehsil Minchinabad, from the father and uncles of the respondent, Muhammad Younis, plaintiff -pre-emptor for a consideration of Rs.40,000, vide registered sale-deed, dated 19-11-1968. Muhammad Younis, plaintiff-respondent son of Khan Muhammad, one of the vendors, sought to pre-empt this sale on the payment of Rs.35.000 by instituting a suit in the Court of the Administrative Civil Judge at Bahawalnagar on 18-9-1969.
The plaintiff-respondent Muhammad Younis pleaded, that he being collaterally related to the vendors had superior right to purchase the suit land. He further averred in the plaint, that the suit land was actually sold for Rs.35,000 and the price mentioned as Rs.40,000 in the sale-deed was fictitious.
3. The appellants-defendants resisted the suit and pleaded, that the suit had not been properly valued for the purposes of court-fee and jurisdiction. They further averred in the written statement, that the suit was Benami and the same was got instituted by Khan Muhammad vendor, the father of the respondent, Muhammad Younis. It was further pleaded, that the suit was barred by time and was hit by the doctrine of partial pre-emption. It was also pleaded, that the appellants had made improvements in the suit land. It was further asserted in the written statement, that the respondent was estopped by his conduct to pre-empt the sale inasmuch as he was present at the time of the settlement of the transaction and the registration of the sale-deed. The appellants also asserted, that they had also purchased a share in the adjoining tube-well towards the improvements of the land. The superior right to pre-empt the sale vesting in the respondent was admitted by the vendor.
4. On the pleadings of the parties, the learned trial Judge framed the following issues:-
(1) Whether the suit is Benami and not instituted for his own benefit by the plaintiff? O.P.D.
(2) Whether the suit has been properly valued for purposes of court-- fee? If not, what is the correct valuation? O.P.P.
(3) Whether the suit is beyond limitation? O.P.D.
(4) Whether the suit is for partial pre-emption? O.P.D.
(5) Whether the defendants have made improvement on the suit land? If so, with what expense and with what effect? O.P.D.
(6) Whether the plaintiff is estopped by his word and conduct from bringing this suit? O.P.D.
(7) Whether Rs. 40,000 were fixed in good faith or paid as the sale price of the suit land? O.P.D.
(8) If issue No.7 is not proved, what is the fair market value of the suit land? O.P.P.
(9) Relief.
5. Issues Nos. 1 to 4 and 6 were decided against the appellants. With regard to the issue No.7 the price of the land, it was found by the learned trial Judge, that a sum of Rs.35,000 was actually paid by the appellants, vendors, and Rs.5,000 have been spent by them towards the registration of the sale-deed. With regard to issue No.5 the expenditure towards the improvement of land, it was held, that the appellants had purchased a share in the tube-well for Rs.6,000 and thus they were entitled to recover the aforesaid amount from the respondent. Consequently, the learned trial Judge decreed the suit of the respondent for the possession of the suit land on the payment of Rs.46,000.
6. The aforesaid decree passed by the learned trial Judge was assailed before the learned District Judge, Bahawalnagar, as against the findings of the learned trial Judge on issues Nos. 1 to 6. The respondent also preferred an appeal questioning the findings of the trial Court on issues Nos. 5 and
7. The learned first appellate Court dismissed the appeal of the appellants as well as of the respondent. The appeal preferred by the respondent was dismissed on account of his admission in Court that he was willing to pay Rs.40,000.
7. In course of the hearing of this appeal, the learned counsel for the appellants, MT. M. M. Bhatti confined his arguments only as to findings of both the Courts below on issue No.6. The learned counsel for the appellant stressed, that the suit was mala fide and in fact the respondent had waived his right to pre-empt the sale, because of his presence and participation towards the settlement of the transaction. It was further contended, that the respondent-pre-emptor was son of one of the vendors and the nephew of the others and, therefore, he fully knew the transaction of sale which took place between the appellants and the vendors. In support of his contention, the learned counsel placed reliance upon the observations of the Supreme Court of Pakistan in the judgment reported as Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403. The Supreme Court of Pakistan, while dismissing a petition seeking leave to appeal on 6th of May, 1984, had observed as under:---- "There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, there are cases where the father sells land and his son files a suit for pre-emption, which cannot but lead one to assume that there was collusion between the two. Such suits are very often mala fide because if the pre- emptor, is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spent twenty years of his life in litigation and incurred huge expenditure which was in many cases even more when the actual price o1 the land or the property at the time of the sale or auction.
Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as e price for the withdrawal of the suit by the plaintiff. The latter does not, therefore, deserve relief through course of law."
8. As far as the observations of the Supreme Court of Pakistan of to the right of pre-emption being predatory or piratical is concerned, the said august Court had itself in another reported case as Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 being Regular Civil Appeals as distinguished from a petition seeking Leave to Appeal decided on 22nd November, 1983 i.e. Five months after the decision in Naseer Ahmad's case was delivered, held, that the nature of the right of pre-emption was not predatory. Precisely, in the subsequent judgment their Lordships of the Supreme Court had dealt as follows as to the nature of the right of pre-emption:---- "This view suffered considerable change in post-partition period in Pakistan. One reason being that it was against Islamic Jurisprudence wherein this is a right as much enforceable of any other right and further that it has a connection with the law of inheritance in Islam as was observed by Mahmood, J. In Gobind Dayal v. Inayatullah I L R 7 All. 775."
This Court (Supreme Court of Pakistan) has also adopted the rule, that a pre-emptor cannot be disallowed a relief or prayer on account of any such like notion.
While holding so the Supreme Court of Pakistan also placed reliance upon the reported cases as Mehr Allah Ditta and another v. Muhammad All and another PLD 1972 SC 59 and Malik Hadayat Ullah and S others v. Murad Ali Khan PLD 1972 SC 69 and Malik Jan Muhammad v. Shukaruddin and 6 others 1980 CLC 186.
9. Respectfully following the judgment of the Supreme Court of Pakistan in Siddique Khan. I hold that the nature of the right of pre-emption cannot be considered as predatory or piratical, thus repel the contention raised by the learned counsel for the appellant, to the effect, that the nature of the right of pre-emption is predatory.
10. The illuminating observations made by Aslam Riaz Hussain, J. In Naseer Ahmad's case on the nature of the suit for pre-empting a sale brought by a son of the vendor are concerned, in my humble view, they cannot be brushed aside and provide food for thought to determine the question of waiver and estopple which is a conscious relinquishment of one's right. In this context, I am further reminded of another judgment delivered by the Supreme Court of Pakistan, reported as Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159. This judgment was delivered by the Supreme Court of Pakistan while deciding Civil Appeals Nos. 216, 217 and 218 of 1981. In the aforesaid case the question of waiver was discussed at length and number of judgments were also reviewed to reach at the core of the matter. It will be useful to reproduce para. 6 of the aforesaid judgment:--- "On the question of the waiver, evidence had been led on behalf of the vendees/appellants to the effect that the pre-emptor had introduced the vendees to the vendors, that he had facilitated the bargain and that he had been present at the time of the sale. The pre-emptor had denied this oral evidence. All the Courts below held that mere presence, even if accepted could not amount to waiver. Waiver is a conscious relinquishment or surrender of right. In Fateh Chand and others v.
Kirpa Singh and others 48 P R 1912-13 I C 561 where the pre-emptors had been present and had helped in the sale negotiations and one of them had assisted in the demarcating the land sold out of large field, it was held that their conduct, which had actively induced in the vendee's mind the belief that they were perfectly agreeable to the purchase by the vendees and did not intend to enforce their rights, amounted to waiver. But mere presence at the time of the sale has not been considered sufficient to amount to waiver (See Muhammad Bakhsh v. Hassan Bakhsh and others 7 P R 1912). On the same principle, Baqri v. Salehon PLD 1972 SC 133, mere presence or even un- successfully bidding at an auction had not been considered to amount to waiver and it had 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". In Shah Bodhrag 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 present case the oral assertion as to the pre-emptor's participation in the sale transactions had been denied by him. The question, therefore, whether the evidence produced by the parties showed a conduct on the part of the pre-emptor amounting to waiver is one of fact and as such the concurrent finding by all the three Courts below will call for no interference"
11. In the light of the observations made by the Supreme Court of Pakistan it is thus obvious, that something more than mere oral assertion has to by proved on the record to establish the participation of a pre-emptor in the transaction of sale. Thus, essentially it is a question of fact which has to be proved like any other fact. Applying this criteria the witnesses produced by the appellants had orally assse rted, the participation of the respondent in the transaction of sale, but the two Courts below have refused to accept the said evidence, in support of the waiver on the part of the respondent. In this behalf, it is further necessary to mention another aspect of the case, which has not been noticed by the Courts below. The respondent has asserted, that before the sale sought to be pre-empted by him, he had left the house of his father and had shifted to Shakargarh where he was cultivating land in his own right, and, therefore, he did not know, that his father and uncles had sold the land. This piece of evidence stands unrebutted, and, in my view, establishes complete answer to the observations made by the Supreme Court of Pakistan in Naseer Ahmad's case. If a son or relative of a vendor in fact is unaware of the sale, then a suit brought by him to pre-empt the sale, can by no standards be branded as collusive, so as to defeat his right of pre- emption. Thus, I would hold, that the question of waiver depends upon the evidence to be adduced by the parties. In this case, the appellant: miserably failed to establish waiver and accordingly I am not inclined to interfere with the findings of the Courts below on issue No.6.
12. A feeble attempt was made to show that the suit was hit by the doctrine of partial pre-emption, inasmuch as the plaintiff had not sought to pre-empt the sale of Kothas and irrigation right in the land. The has no force, because the doctrine of partial pre-emption is relatable to the various pieces of the land which may be picked up and chosen for the purposes of pre-empting its sale.
13. It was further contended, that since the appellants had withdrawn the pre-emption money during the pendency of the appeal, therefore they were estopped to prosecute this appeal. The controversy has been set at rest by the Supreme Court of Pakistan in the judgment reported as Muhammad Ramzan v. Muhammad Khan and another 19721 SCMR- 442. Hence the contention has no force.
14. The learned counsel also contended, that as against the findings of the Courts below, it should be held, that the transaction was Benami. Unfortunately, no evidence worth the name exists on the record to prove, that the suit brought by the respondent to pre-empt the sale was Benami. On the other hand, the evidence exists on the record to show, that the respondent was an independent person and cultivates land in his own right in Shakargarh. Hence the contention is devoid of any substance and the judgment cited as Muhammad Abdullah v. Abdullah and others PLD 1977 Azad J & K 69 is not applicable.
15. In this view of the matter, this appeal must fail. Accordingly, the appeal is dismissed. The judgment and the decree of the learned District Judge are hereby maintained. There will be no order as to costs.