Respondent filed a suit on 21-12-1980 for possession through ire-emption of land purchased by the petitioner by means of a mutation sanctioned on 11-3-1980. His claim was denied and the suit was contested also on the pleas of waiver and limitation, raised on the premises that :he land was sold in an auction held in June 1979, after due publicity made on a loud-speaker in the mosque and even though the plaintiff himself attended it, he did no offer any bid to evince interest in curing the land and that possession thereof was also delivered to the petitioner on the same day. These pleas were set, down in issues Nos.l and 2 respectively.
2. Trial Court held that the plaintiff had a superior right of pre-emption and also decided issue No.l in his favour by holding his Suit to be within time from the date of attestation of mutation for the reason that the defendant had not proved that he had entered into possession of the land at any time before the sanction of mutation. However, issue No. 2 was decided against the plaintiff with the finding :hat he had his house situated close to the mosque, therefore, he had In opportunity to get the land in the auction and his failure to avail himself of it constituted abandonment, of his right. His suit was, before, dismissed.
3. Plaintiff's appeal there against was accepted by a learned Additional District Judge on 5-9-1984 and the trial Court's findings on issue No.2 were reversed, on the basis of the law declared in Baqrind 4 others v. Salehon and 3 others PLD 1972 SC 133 to decree its suit. It is recorded in paragraph 7 of his judgment that no other Joint had been argued before him. Vendee-defendant has now come up :o this Court on revision. .
4.Learned counsel has taken exception to the findings recorded Below on issues Nos.l and 2. His contention, as regards issue No.l, which relate to limitation, is that the trial Court's finding there under s against the evidence available on the record of the suit. This contention s only frivolous and does not call for serious attention for the reasons, 'instly, that the petitioner' did not contest this finding in the appeal Secondly, there is nothing available on the record of this revision petition to substantiate the contention because copies of the evidence led in the suit, have not, been appended to it. Since under the proviso to subsection (1) of section 115 of the C.P.C., this revision petition is liable to be decided primarily on the present, file, without calling for the original record, therefore, his contention is simply untenable and is repelled accordingly.
5. As regards issue No.2, relating to waiver, learned counsel has argued that, learned Additional District Judge has misconstrued the Supreme Court judgment relied upon by him. In the estimation of the learned counsel, that judgment is an authority for not inferring waiver in a case where the prospective pre-emptor actually participates in an auction but, fails to out-bid the purchaser because thereby he will not only have expressed his intention to get the property but will also be deemed to 'have done all that he may have had to, for getting it and hence that, case would not be an authority for the proposition that, if a person does not show any interest at the time when the property is offered for sale in an auction and simply stays away, he may not be deemed to have relinquished his right of pre-emption because a view to that effect was expressed as far back as the year 1873 in the case reported as Mahomed Bakhsh v. Hira 47 P.R. 1873.
This contention is misconceived and for a number of reasons, it is not possible to accept the broad proposition propounded to the effect that abstention of the respondent from auction can result in waiver of his right of pre-emptlon. Firstly, waiver and estoppel can follow from some positive act and not from mere omission to act, unless there be a duty cast by law to act in a particular way. I am not aware of such a B provision of law, and even the learned counsel has not pointed to any, whereunder an obligation may be held to have been laid on a prospective pre-emptor to, at all events, participate in an auction and much less is there any rule of law of require him to out-bid his rivals at the peril of losing his right to sue for recovery of the property sold. In Muhammad Saleh v.
Mohammad Shafi 1982 SCMR 33 regarding the rule of waiver, which came up for consideration in a different situation, their Lordships of the Supreme Court observed that mere inaction or allowing an opportunity to pass by does not necessarily amount to waiver. Even in Baqri's case
(ibid) Supreme Court held that failure of a person entitled to pre-empt to out-bid a purchaser does not constitute waiver. The aforecited Mnhomed Bakhsh's case of 1873 was not approved by the Supreme Court and it was not followed even by the Chief Court in the later judgments. It, was distinguished in Shah Bodhraj v. Sundar Singh and another 100 P.R. 1885, on the ground that it had arisen before the passing of the Punjab Laws Act IV of 1872, wherein a provision for service of notice was made in its 13th section and, relying on Phulel v. Buts 52 P.R. 1880 and Karam Khan v. Jang Baz Khan 112 P.R. 1882, it; was therein held:- "Proper course to shorten the time within which a right of pre-emption may be exercised is to issue notice under section 13 of Act IV of 1872, should he fail to do so and plead waiver, he must; prove such a definite act on the part of the pre-emptor as would leave no doubt whatever of his abandonment of his right."
Again, in Mula v. Nihal Chand and others, legal representatives of Dona, deceased 78 P. R. 1881, where a notice under section 13 of the Punjab Laws Act, 1872 had not been served, it was held by a Division Bench of the Chief Court that it cannot be inferred from his abstaining to out-bid the auction purchaser that he had in any way waived- his right. Ratio of this judgment was followed by another Division Bench of that Court in Muhammad Bakhsh v. Sardar Rajindar Singh 121 P.R. 1888 wherein, it was hetd that a plaintiff having a right of pre-emption does not lose it by omitting to out-bid at a sale .
It follows from the above judgments that rather than unduly raising the price by entering into competitive bidding, a propsective pre-emptor may, well within his right, simply stay away and not enter the arena at all so that he may wait for the price to be determined. This should be legitimately permissible for the exercise of his right of pre-emption because no one can be expected to make up his mind about securing to himself a property until he becomes aware of the price that he may have to pay for. It. Again, in the case of Baqri (ibid), while holding that in the absence of notice prescribed under section 19 of the Act, no question of foreclosure of the right of pre-emption arises, their Lordships of the Supreme Court also approved the view expressed in Qaim Din v. Said Ahmad PLD 1967 Lah. 1171, to the effect that until a sale actually takes place, no person can assume to have a right of pre-emption which although is a vested statutory right, is not a right in property.
Thus, even though the cases wherein express refusal of a pre-emptor to purchase the property is proved or such conduct is shown &s unmistakably leads to the conclusion that he was not interested in the purchase thereof, stand on a different footing, it is clear that until the point of time that the desired price becomes known to the propspective pre-emptor, there would not be any conscious abandonment of the right to acquire property and, as has been held in Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159, waiver can arise only from conscious abandonment of right. Support for the above proposition is also available from the provisions of section 19 of the Punjab Pre-emption Act which reads:- "When any person proposes to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property or urban immovable property, in respect of which any person have a right of pre-emption, he may give notice to all such persons of the price at which he is willing to sell such land or property or of the amount due in respect of the mortgage, as the case may be.
Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property or any part thereof is situate, and shall be deemed sufficiently given if it be stuck up on the Chaupal or other public place of the village, town or place in which the land or property is situated."
Mention of a definite price in such a notice is one of the conditions for its validity. Case of Ghulam Muhammad and others v. Karam Dad and others PLD 1983 Lah. 231 is directly in point.. Therein, while examining the question as to whether a 'Munadi' may amount in law to a notice of the intended''sale, it was observed:- " ..Punjab Pre-emption Act, 1913 contemplates no form of notice except as mentioned in section 19 of the Act and a notice through a Munadi has not been envisaged by the Act yet it can be maintained that a notification of a proposed sale by any other form is not excluded by the Pre- emption Act. But as to the contents of a notice section 19 does throw light upon that, irrespective to the mode of service of notice as mentioned in the section itself, according to which the mentioning of price at which the seller is willing to sell the land is an essential ingredient. Here in the Munadi referred to there is no mentioning of the price at; which the vendor was willing to sell his land, therefore, the Munadi as to its contents cannot be regarded as constituting a proper notice."
Therein, with reference to the contents of a notice as given in the first part of section 19 of the Act, it was then concluded that a mere notice to sell the land without indicating the price at which it, was intended to be sold, was not, sufficient for construing waiver of right of pre-emption.
6. There being no obligation on a prospective pre-emptor to participate in an suction and offer his bid, the mere failure of the respondent to participate in the auction, without anything more, cannot be construed as waiver of his right of pre-emption. Actually, there would not have been any point in his having attended at the suction inasmuch as nothing would have come out there from because before the fall of hammer, he may not have offered a higher bid, lest he may therein pave the way for others to go still higher up in offering the price and thereafter there would not be anything left for him to participate in. In the above cited case of Hafiz Hassan Muhammad, Supreme Court: has held that mere presence of a prospective pre-emptor at the time of sale of property does not constitute waiver of his right. Again, respondents keeping out of the proceedings relating to sale of land in suit does not constitute any positive act and it can, at the best, be a simple indifference which may be equated with silence so that it would not really prove anything against him. In this context, reference may be made to Mahmud Bakhsh v. Hassan Bakhsh and others 7 P.R. 1912 wherein a Division Bench of the Punjab Chief Court has observed:- "The next question is, whether the plaintiff himself waived his rights. For the vendees certain witnesses have appeared who say the plaintiff was present when the bargain was struck, but all that they say is that plaintiff kept silence. Now this evidence, even if we accept it, does not prove anything amounting to waiver. A man may be present at the time of sale, but the mere fact that; he does not then announce his intention of bringing a suit to pre-empt cannot debar him. He has a whole year in which to make up his mind whether he will assert his pre-emptory rights. If the vendee were at time of sale to ask him if he intended to exercise those rights he might, of course, reply that he waived his rights; in such a case, he would of course be estopped. But he would be equally justified in saying that he had not yet made up his mind whether he would assert those rights or not, and that for the present he was content to reserve the option and to refrain from a waiver of right. Where no question is asked and a pre-emptor keeps silence, how can acquiescence he assumed?"
7. Learned counsel also made a passing reference to Sardar Muhammad v. Khuda Bakhsh and another AIR 1935 Lah. 884 in support of his contention regarding waiver. That case, however, proceeds upon its own facts and cannot be applied to this case because therein the pre-emptor was proved to have made a statement which showed that he had no intention to purchase the property. Moreover, the cases decided during the last one century, eversince the.Judgment delivered in the case of Shah Bodhraj (ibid) in 1885, have consistently taken the view that to infer waiver against a pre-emptor, such unambiguous act on his part as may clearly establish abandonment of his right, should be proved through cogent and convincing evidence. In this behalf, in addition to the above-cited cases, reference may also be made to Natha Singh and others v. Sundar Singh and others AIR 1926 Lah. 10(D.B.); Kidar Nath and others v. Bagh Singh and others AIR 1937 Lah. 504(D.B.); Bhagat Singh v. Hukam Singh and others AIR 1947 Lah. 299; Sultan Ahmad v. Muhammad Anwar 1981 CLC 270 (273); Mian Shah Nawaz Khan v. Allah Ditta and others 1982 CLC 1348 and Noor Muhammad v. Nazir 1985 CLC 480.
8.Learned Additional District Judge has taken a correct view of the law in concluding that mere failure of the respondent to participate in the auction, without anything more, is too inadequate a basis for F concluding that he had abandoned his right of pre-emption. Contention of the learned counsel is repelled for all the foregoing reasons.
9. No other point has been argued by the learned counsel nor is there any jurisdictional error pointed out in the appellate judgment which is unexceptionable.
10. This Civil Revision has no force and is, therefore, dismissed in limine.