' This Regular Second Appeal calls in question the judgment/ decree dated the 21st of May, 1976, of the learned District Judge, Sialkot, whereby the respondent/pre-emptor's appeal was accepted.
2. The whole contest in this suit for pre-emption hinged round the point of waiver. The appellant- vendee's contention was that the respondent/pre-emptor had not only signed the sale-deed as a marginal witness but, having been concerned with mortgage of the land in question in his own favour, also had full knowledge of the sale and had thereby relinquished his right to purchase it.
The respondent on the other hand though did not deny having signed the sale-deed as a marginal witness, yet maintained that he had not waived his right.
3. The trial Court upheld the contention of waiver and dismissed the respondent's suit but the learned District Judge in appeal reversed the finding on the relevant issue holding that merely signing the sale-deed as an attesting witness did not suffice to relinquish the right of the respondent to pre-empt the land. Consequently the suit was decreed.
4. In support of the R.S.A., Ch. Khurshid Ahmed, Advocate, laid considerable stress that evidence brought on the record indicated something more on the part of the respondent to have signified his consent to the sale in order to preclude him from pre-empting it. According to his reading of evidence, the mortgage created by the vendor in favour of the respondent was dated the 29th- of April, 1968, and that the same being concomitant with the sale itself was enough to ascribe not only the knowledge of the sale to him but also his consent. I am afraid this contention was not supported by evidence. The sale-deed itself showed that the mortgage in favour of the respondent was created some time ago and not on the 29th of April, 1968. The confusion in regard to this date seems to have cropped up by reading affidavit dated the 29th of April, 1968, of the respondent wherein he had testified that the land had already been mortgaged in his favour and that the same did not violate the Martial Law Regulation. An assumption was made that the mortgage was created on the 29th of April, 1968, when this affidavit was sworn. But this was not the fact. The affidavit made only a recital of a past event. It is not clear from the record as to when actually the mortgage in favour of the respondent was made but the fact remains that it had preceded the sale. The argument that the respondent in his capacity as a previous mortgagee had notice of the impugned sale was not much inspiring. May be that the mortgage was created a couple of years ago but the same will not suffice to hold that the respondent had notice of the sale taking place two years later. Nothing turns upon this point in favour of the appellant.
5. The evidence as to whether the appellant had consented to the sale was contradictory. The learned District Judge in the impugned judgment took note of it. Its reappraisal may not be made in second appeal. However, while the appellant himself showed presence of the respondent at the time of the transaction and scribing of the sale-deed, he himself excluded, his presence at the time of the attestation of the sale by the Sub-Registrar. In fact, that was the crucial time inasmuch as he was supposed to be before the Sub-Registrar as attesting witness of the deed. If on the respondent's own showing the appellant was away when he was supposed to- be present, that will be in a way a contradiction in itself. D.W.4 Sardar makes no reference whatsoever to the presence or participation of the respondent at any vital moment in the course of completion of the sale.
There was difference of opinion as to whether the sale took place at Chah Khushi Muhammad or Mauza Dhodowal. The two places were admittedly apart and this variance in the evidence was held sufficient to disbelieve the appellant's version.
6. The appellant did not deny his signatures on the sale-deed, although he tried to explain in' the evidence that he had been misled in signing it. Counsel was right in urging that in the plaint or replication, no averment was made as to the alleged fraud or misrepresentation whereby the respondent was made to sign the sale-deed as an attesting witness. It may be an afterthought.
Nonetheless there was abundant authority for the view that merely signing a sale-deed in the margin did not necessarily destroy- one's right to pre-empt the sale subsequently. Muhammad Bakhsh v. Safdar Hussain and others 1986 SCMR 300 relied upon by the appellant itself lays down that something more than attestation was required to estop a pre-emptor from pre-empting the sale. This was the tenor of quite, a few authorities cited in support of 'the alleged waiver. The evidence at best showed that the respondent was present at the time of one or two occasions connected with the sale in dispute. Mere presence was in consequential. Signing the document as a marginal witness was more than mere presence but the same too was held insufficient to disentitle a prospective pre-emptor. Luqman v. Allah Diwaya and others PLD 1967 Pesh. 166 based upon Banga Chandra . Dhur Biswa s and another v. Jagat Kishore Achariya Chowdhuri and others AIR 1916 P C 110 quite aptly applied to the situation in hand. Probably a conscious offer to purchase at a quoted price was necessary and if the same was spurned by the pre-emptor, he would be precluded by his conduct to pre-empt the sale. In this case there was not an iota of evidence to reveal if any such offer was made. The respondent categorically discounted it in his testimony. He' was not cross-examined to elicit an affirmation on the point. Equally ther was no indication if any designated price was put to him. The conclusion drawn by the learned District Judge is unexceptionable.
7. There is no merit in. The R.S.A. And the same is dismissed leaving the parties to bear their own costs of the present appeal.