' In this revision petition, judgment and decree, dated 23-11-1983 passed by the learned Additional District Judge, Sialkot, whereby the respondents appeal against judgment and decree, dated 5-10- 1977 of the learned trial Court was allowed and their suit for possession -through pre-emption of the disputed land was decreed, has been challenged by the vendees and the mortgagees of the land in question.
2. On 7-6-1975, the respondents instituted suit for possession through pre-emption of land measuring 98 Kanals and 5 Marlas situated in village Sabzpir, Tehsil Pasrur, District Sialkot, sold by Talib Hussain and others to petitioners Nos.1 to 15 for rupees sixty thousand by means of registered sale-deed, dated 10-6-1974. A month before the sale in favour of the said petitioners, the land was mortgaged by the vendors with petitioners Nos. 16 to 18 for a period of eighteen years for rupees ten thousand. The respondents claimed superior right of pre-emption on the ground of relationship with the vendors and being owners in the estate in which the suit land was situated and it was contended by them that the petitioners Nos. 1 to 15 had lost their right to retain the land by joining in the sale, petitioners Nos. 1 to 7 who were not owners in the estate. The respondents also questioned the genuineness of the mortgage effected by the vendors in favour of petitioners Nos.
16 to 18. They also did not admit the payment of rupees fifty thousand as price of the land by the vendees at the time of registration of the sale-deed as according to them a sum of rupees five thousand was received back by the vendees after registration of the sale-deed. The suit was contested by the petitioners denying the respondents' superior right of pre-emption. A number of objections were raised in the written statement. One of these objections was that before the sale of the land in question in favour of the petitioners, the respondents had entered into an agreement with the vendors on 13-12-1973 to purchase the land but subsequently they had shown their inability to implement the agreement for want of funds. From the pleadings of the parties,, the learned trial Court framed the following issues: -
(1) Whether the suit is for partial pre-emption? O.P.D.
(2) Whether the suit is not correctly valued for the purposes of court-fee and jurisdiction, If so, what is the correct valuation? O.P. Parties.
(3) Whether the plaintiffs have waived their right of pre-emption? O.P.D.
(4) Whether the defendants Nos.16 to 18 are motrgagees and whether the plaintiffs have got locus standi to file the suit against the defendants Nos.16 to 18 ? O.P.D.
(5) Whether the description of the suit property is not correct; If so, what effect? O.P.D.
(6) Whether the plaintiffs have got the superior right of pre-emption? O.P.P.
(7) Whether the sale price of Rs,60,000 fixed in good faith or actually paid? O.P.D.
(8) If issue No,7 is not proved, what is the market value of the suit land? O.P.P., and
(9) Relief.
3. After recording the parties' evidence and considering the submission made by their learned counsel, the learned trial Court decided Issues Nos.1 and 5 against the petitioners and Issues Nos.3 and 7 in their favour. Issue No,6 was decided in respondents' favour while issue No,4 was decided against them. Under issue No,2, it was found that the value of the suit for the purpose of court-fee was Rs,3,624.75 and the respondents were allowed to make up deficiency in court-fee within one month. As a result of finding under issue No,3, the respondents' suit was dismissed by the learned trial Court on 5-10-1977. The respondents preferred appeal against the judgment and decree of the learned trial Court. The learned Additional. District Judge, who heard the appeal, reversed the finding of the learned trial Court under issue No,4 and left it open as according to him the question of validity of the mortgage could not be challenged in a pre-emption suit. Finding of the learned trial Court under issue No,3 was also reversed. Valuation of the suit for purposes of court-fee and jurisdiction as determined by the learned trial Court while deciding issue No,2 was maintained and the respondents were directed to make up deficiency in court-fee before 4-1-1984. As a result of reversal of the finding under issue No,3, the respondents' appeal was accepted and their suit was decreed on payment of rupees sixty thousand as pre-emption money out of which a sum of rupees ten thousand was ordered to be retained by the respondents for payment to the mortgagees at the time of redemption of the mortgage. Feeling aggrieved by the judgment and decree of the learned Additional District Judge, the petitioners have filed the instant revision petition in this Court.
4. The main ground, on which the judgment and decree of the learned Additional District Judge has been assailed, is that since the respondents had intentionally failed to pay proper court-fee on the plaint and had not complied with the order of the learned trial Court to make up deficiency in court-fee within one month, their conduct was clearly contumacious and as such they were not entitled to any further time allowed by the learned appellate Court to pay the deficient court-fee.
The petitioners also questioned the finding of the learned Additional District Judge under issue No,3 on the ground that their evidence was not properly considered and the finding of the learned trial Court was reversed without cogent reasons.
5. Although this revision petition was admitted to consider the petitioners' objection against the order of the learned Additional District Judge allowing further time to the respondents to make up deficiency in court-fee, learned counsel for the petitioners at the time of hearing, submitted that he would not press the above objection and would only address the Court on the plea of waiver covered by issue No,3.
6. Learned counsel for the petitioners submitted that the evidence led by the petitioners had established that the vendors had agreed .To sell the disputed land to the respondents at the rate of rupees twenty thousand per Acre and an agreement to sell the land was executed by Muhammad Ramzan General Attorney of the vendors on 13-12-4973. The original agreement deed was handed over to the respondents which they failed to produce in Court in pursuance of notice issued to them. The petitioners accordingly examined Khushi Muhammad petition-writer who wrote the agreement deed as D.W.1. He produced a copy of extract of the agreement deed as recorded in his register and proved the execution of the agreement deed by Muhammad Raman. Talib Hussain one of the vendors also appeared as D.W.3 and supported Khushi Muhammad D.W.1 stating that the respondents had agreed to purchase the land in question, but subsequently they could not raise the requisite amount for payment as price and as such showed their inability to purchase the land. They, however, arranged the sale of the land in question in favour of the petitioners.
Muhammad Ashraf one of the petitioners also appeared as D.W.5 to support the above version. As against the above evidence, Muhammad Hussain respondent alone entered the witness-box to controvert the petitioners' case. According to the learned counsel, there was no basis for the learned Additional District y Judge to disbelieve the petitioners' evidence which had been found reliable and had been accepted by the learned trial Court.
7. According to the sale-deed, dated 27-5-1974 (Exh.D-3) executed in favour of petitioners Nos.1 to 15, the suit land was purchased by them from Talib Hussain, Muhammad Azam, Asmat Sajjad-sons and Mst. Khursid Bibi widow of Sadiq Ali and Muhammad Ramzan, Abdul Rahman, Abdul Aziz, Liaquat sons and Mst. -Razia Bibi aliasu(R-Ityya I3egum daughter and Mst. Inayat Bibi widow of Muhammad Shafi and Mst. Sardar Bibi widow of Khera and one Shera son of Lubhaya. The agreement to sell executed on 13-12-1973, an extract of which has been placed on the file in the form of copy from the petition-writer's register (Exh.D-1) shows that Muhammad Ramzan son of Muhammad Shafi had executed the agreement to sell on his own behalf as also on behalf of his brothers. It is not indicated in what capacity, he had entered into agreement on behalf of his brothers. As noticed above, only a part of the suit land was owned by Muhammad Shafi, his brothers and sister Mst. Razia alias Ruqayya Begum and his widowed mother Mst. Inayat Bibi. There is no mention in the extract (Exh.D-1) that the agreement to sell was also entered on behalf of Mst.
Razia Bibi alias Ruqayya Begum and Mst. Inayat Bibi. According to sale-deed Muhammad Ramzan was appointed as general attorney by his brothers, sister and mother through general power of attorney executed and registered on 17-1-1974. It means that Muhammad Ramzan was not holding any power of attorney on behalf of his brothers, sister and mother on 13-12-1973 when the agreement to sell was executed by him. Muhammad Ramzan executant of the agreement was the main witness in the case as he would not have only proved the execution of the agreement to sell but would have also clarified his position as in what capacity he had executed the said document.
The petitioners' omission to produce him as a witness raises a strong presumption against them.
The pre-emption suit, out of which the present revision petition has arisen, was instituted by Muhammad Hussain son of Muhammad Siddiq, Muhammad Shafi son of Ghulam Muhammad and Muhammad Sharif, Muhammad Bashir, Muhammad Nazir and Muhammad Hanif sons of Dewan.
According to Exh. D-1 the agreement to sell was executed by Muhammad Ramzan in favour of Muhammad Hussain son of Muhammad Siddiq and Muhammad Sharif son of Dewan. Evidently, the other pre-emptors are not affected by the aforementioned A agreement to sell.
8. In view of the factual position noticed above that the agreement to sell was not executed by or on behalf of all the persons who sold the disputed land and further that it was not executed in favour of all the pre-emptors, the plea of waiver based on the contention that the pre-emptors had entered into agreement to purchase the land in question before the sale in favour of the vendees and that they could not purchase it on account of paucity of funds, is not sustainable and has been rightly rejected by the learned Additional District Judge.
9. The petitioners' contention that the respondents had participated in the bargain of sale and that the land had been purchased by them through them is not supported by any reliable evidence.
The oral evidence relied upon by the petitioners is inconsistent inasmuch as according to Manga (D.W.2) Muhammad Hussain, Bashir, Sharif and his brothers had participated in the bargain of sale while Talib Hussain D.W.3) says that all the pre-emptors had participated- in the bargain of sale.
Right of pre-emption is a legal right and the pre-emptor can be deprived of this right only if it is established by cogent evidence that he had voluntarily relinquished his right. Oral evidence to the effect that the pre-emptor had taken part in the bargain of sale has not been generally accepted as reliable evidence to deprive the pre-emptors of their valuable right. Learned counsel for the petitioners has cited Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 where plea of waiver by conduct raised by the vendees was accepted. In that case, the question for consideration was whether the refusal of the pre-emptor to purchase land before it was sold to the vendees would have the effect of extinguishing his right of pre-emption by waiver even if no notice, as contemplated by section 19 of the Punjab Pre-emption Act, 1913, was served on him. Reliance had also been placed on the decision in Baqri v. Salehon PLD 1972 SC 133, where it was held that the right of pre-emption could be waived before the actual sale by express refusal to purchase the property. It has been noticed above that the evidence produced by the petitioners has failed to establish that all the persons who instituted the suit to pre-empt the sale in question were first asked to purchase the land but they had declined to purchase it. The two judgments, referred to above, therefore, have no application to the facts of the present case.
The upshot of the above discussion is that the learned Additional District Judge's finding under issue No,3 being based on proper appreciation of the evidence calls for no interference. The revision petition is accordingly dismissed with costs.