' The appeal raises a question of waiver ascribed to Syed Qalandar Shah, pre-emptor-respondent.
2. The controversy has arisen out of alienation of the suit land measuring 5 kanals 17 mar/as, consisting of survey number 281/1-min 8 mar/as and survey number 275-min 5 kanals 9 mar/as, situate in village Langarpura, Tahsil Muzaffarabad, including proportionate share of Shamilat-e- Deh etc. Hazrat Shah, brother of Syed Qalandar Shah, sold the suit land through a registered sale- deed, dated March 11, 1974, for a sum of Rs, 5,000 in favour of Shamas Din, vendee-appellant.
Qalandar Shah pre-empted the sale by virtue of his relationship with the vendor and being a co- sharer in the suit land. The claim of the preemptor was ,repudiated, among others, on the ground of waiver. It was averred that the pre-emptor was present at the time of sale, as such, he was estopped from exercising the right of prior purchase. The trial Court upheld the contention of the vendee and dismissed the suit but on appeal the finding was reversed and a decree for pre- emption was passed by the learned District Judge in favour of the plaintiff-pre-emptor.
3. Waiver is pressed against pre-emptor in view of the provisions of sections 19 and 20 of the Pre- emption Act. Section 19 postulates notice by vendor to pre-emptor containing particulars of the property under sale including the proposed price at which such property was desired to be sold or the amount due in respect of the mortgage, as the case may be. Such notice is given through the Court having territorial jurisdiction in the matter. Section 20 lays down that persons havitig the right of pre-emption to whom a notice under section 19 ha 's been given, are under duty to answer such notice within a period of three months or such further extended period as may be allowed by the Court but within one year from the date of notice, as to whether the pre-emptor accepts the, price on the amount due on the footing of the mortgage as correct and is willing to pay the same or not.
In case of notice contemplated under section 19 and answer to it as provided under section 20, the controversy between pre-emptor and vendor or vendee is settled finally. On the assumption of the provisions of sections 19 and 20 it was equally observed by the superior Courts that if it was positively proved that the pre-emptor abandoned or relinquished his prior right of purchase by refusing to purchase the property under sale such a pre-emptor was estopped from exercising his right of pre-emption. On this premises, an objection of waiver is suitably invoked against a pre- emptor. The term "waiver" received attention in various cases of pre-emption wherein it was defined as : "Conscious renunciation or interntional relinquishment of a known right."
' It was defined in Ali Haider Khan's case (1) as : "Waiver means, to abandon of relinquish of a known vested right by express declaration or by conduct.
' Waiver is to be proved by a positive act by conduct including relinquishment and such an act must necessarily rest on the state of particular circumstances in each case. This is so as the controversy of waiver is settled in each case in the light of its own facts. In the case of Ali Haidar Khan it was also observed that in order to deprive a successful pre-emptor of his vested right on the ground of waiver, onus is cast upon the vendee to prove waiver by conclusive evidence in order to benefit from such act or conduct of the pre-emptor. In view of the facts of that case, the allegation of waiver . Was not accepted to have been proved.
' In Baqri's case (2), the pre-emptor participated in the auction as he made a bid for purchases of the land in question. The property was sold to a higher bidd.r but the transaction of auction was pre-empted by the plaintiff in exercise of his superior right of purchase. The act of participation of the pre-emptor in the auction was termed as waiver, as such, the claim was opposed. The Supreme Court finally overruled the objection by declaring that mere participation in the auction for sale of the property or failure to outbid the purchaser could not be regarded as a waiver of the right of pre-emption.
' In Luqman's case (3), the pre-emptor was ascribed the attestation of the compromise-dead purported to be a sale of the property in dispute as such, defence of waiver was invoked against him. Mr Justice Khattak overruled the objection and held that the mere fact that the pre-emptor was an attesting witness to the compromise whereby the property in dispute was transferred by the vendor to the vendee, did not amount to waiver of right by pre-emptor. This view rested on the decision recorded in Abdul Aziz's case (4), wherein it was held that attestation of a deed does not by itself estop the person attesting from denying that he knew its contents or that he contested to the transaction which it effects.
(1) PLD 1983 SC (A J & K) 5 (2) PLD 1972 SC 133
(3) P 1 1967 Posh. 166 (4) AIR 1925 Lab. 413 ' In Qaim Din's case (1), late Mr. Justice K. E. Chauhan observed that mere refusal to purchase at a higher price or making offer to purchase at a sum less than the one demanded by the earlier, does not amount to waiver.
4. The concensus, therefore, is that at. The time of alleged waiver, the right of pre-emption must exist and that pre-emptor should b shown to have abandoned or relinquished such right knowingly. An act or omission of pre-emptor prior to the transaction of sale was not deemed sufficient to deprive him of his superior right which in fact accrued at the time of completion of the sale. Likewise, it was necessary to prove that the pre-emptor was alive to his right and in that state of circumstances, by his conduct, he waived such right. In the present case, it is claimed by the vendee that the pre-emptor was present at the time of the transaction of sale. It was argued that mere presence of the pre-emptor at the time of transaction of the sale was sufficient to preclude him from exercising the right of pre-emption. The averment made in the pleadings was sought to be supported by testimony of Ghulam Rasool and Sikandar Khan. It was deposed by Ghulam Rasool that earlier to the execution of the sale-deed, the transaction was settled in his shop in presence of Sikandar Khan, Lambardar, Naubat Shah, Rehmat Shah, Maqbool Shah and the plaintiff. It was further deposed that in consideration of settlement of the transaction, a sum of Rs, 2,100 was paid to the vendor by the vendee. Sikandar Khan, Lambardar, another witness, corroborated Ghulam Rasool. In cross-examination, both the witnesses miserably failed to account for th definite date, time or duration of the alleged settlement of the transaction. It is relevant to mention here that none of these witnessses was a marginal witness of the sale-deed. The oral testimony of the e two witnesses was not relied upon by the learned District Judge as in his opinion the evidence of these witnesses did not ring true. I concur with the finding of the learned District Judge and in addition to that, my reasons are: (i)The vendor and the vendee, the actual parties to the transaction, failed to appear in the witness- box. The proper persons to render true account and details of the transaction were the parties to the transaction. No doubt, the vendor, after sale, lost his interest and was not interested to go in the witness-box but the vendee, whose interest was at stake, naturally was free to defend his title in the suit land, his failure to appear in the witness-box raises a strong presumption against him Therefore in absence of testimony of the vendee, the testimony of the aforesaid witnesses is not considered sufficient to uphold the objection of the vendee.
(ii) These witnesses were not the marginal witnesses of the sale-deed and none of the maiginal witnesses of the sale-deed was produced in support of waiver.
(iii) Even if it accepted for argument's sake that the pre-emptor was present at the time of settlement of the transaction of sale, his presence, by itself, was not sufficient to defeat his right. In addition to his presence, expression of his consent of any overt act or demonstration of such an act showing unwillingness of the pre-
(1) PLD 1967 Lab. 1171 emptor to purchase the land at its proposed price was further necessary. This was not proved in the present case.
' The proposition raised in the present appeal, therefore, finds a negative answer. The appeal is, therefore, dismissed with costs.