' This civil revision has arisen out of a pre-emption suit brought by respondent No, 1, Muhammad Ashraf against the petitioners, Wali Muhammad and others, and respondent No, 2, Mst.Khurshid Begum. The land involved in the suit was sold by one Mustafa Shah in favour of the petitioner.
Mustafa Shah has since died and the said Mst. Khurshid Begum is his widow. The suit was resisted by the petitioners, who were vendees qua the sale in dispute, inter alia on the ground that respondent No, 1 (Plaintiff), hereinafter referred to as the respondent, has waived his right of pre- emption, Issue framed in this regard was decided in favour of the petitioners by a Civil Judge of Okara. Resultantly, the suit was dismissed by him. On filing of appeal by the respondent the District Judge, Okara, reversed the finding of the learned trial Court on the issue of waiver and decreed the suit. Feeling aggrieved by the judgment and decree passed by the learned Appellate Court, petitioners have come up in revision to this Court.
2. It was contended by learned counsel for the petitioners that evidence produced by the, petitioners on the issue of waiver was not duly considered by the learned District Judge. It was oral evidence consisting of the statements of Mahr Din (D.W. 2), Nosher (D.W. 3), Nawab Khan (DW.7), Muhammad Ashraf (D.W. 6) and Muhammad Din (D.W.9). Perusal of the judgment of the learned.
District Judge would show that he did consider their evidence but did not rely on it for the following reasons:- "Admittedly there being no documentary evidence, the oral evidence has to be closely scrutinized because the waiver has not to be inferred easily unless the evidence is credit worthy. The evidence of the DWs. Is contradictory. According to Mehr Din and Nosher the plaintiff had induced the defendant to purchase the land, whereas the remaining DWs simply stated that the plaintiff was present when the bargain was struck. Then the presence of Mehr Din and Nosher has not been mentioned by any other DWs. Therefore this discrepent and contradictory evidence of the defendants does not impress as truthful. When there is no document then the oral evidence can be procured easily in any number and unless it inspires confidence it cannot be believed. The learned counsel for the respondents argued that the D.Ws. Had not been cross-examined on the point of waiver, therefore their evidence has to be taken as correct, but this argument has no force because the DWs. Have cross-examined at length and have been put the suggestions that they were giving false evidence. Therefore their evidence having been challenged in their cross- examination. This argument of the learned counsel for the respondents has no force."
3. Besides. The defects pointed out by the learned District Judge, there are other discrepancies in the petitioners' evidence. The petitioners' case is that all of their said witnesses were present at the time of bargain, Muhammad Din (DW 9) and Muhammad Ashraf (DW 8), however, did not make a mention of Mehr Din (DW 2) and Nosher (DW 3). Muhammad Ashraf (DW 8) did say that Nawab Khan (DW 7) was also present at the time of bargain but Muhammad Ashraf (DW 8) did not say so.
Mehr Din (DW 2) did not say that any of the other witnesses of waiver were present at the time of bargain. Same is the position of Nosher (DW 3). According to Muhammad Ashraf (DW 8). Subadar Hussain Bakhsh and the village Chokidar were also present at the time of bargain but Mehr Din and Nosher did not say so. Muhammad Ashraf also said that Muhammad Din (DW 9) was present at the time of bargain but Muhammad Din did not say that the said Muhammad Ashraf was there.
4. Very strong and cogent evidence is needed to prove the issue of waiver but the evidence led by the petitioners is not of that type. As explained above, it is self-contradictory and discrepant. I also stands rebutted by the respondent's evidence. No legitimate exception can, therefore, be taken to the finding of the learned District Judge by which the issue of waiver was decided against the petitioners.
5. Before parting with this case, I would like to attend to CM. No, 234-C of 1987 filed by the petitioners seeking permission to add two new grounds in their revision petition. One of the additional pleas sought to be raised by them is that since the sale in dispute was oral it was not pre-emptible. The other plea is that in view of the judgment reported as Governmet of N.-W.F.P.
Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360_ (Shariat Appellate Bench), the respondent has lost his right of pre-emption. He had claimed superior right of pre-emption on the ground that he is the owner of the estate but the respondent do not possess this qualification. Learned counsel did not press the second plea but did make submissions on the first one. He relied on Muhammad Bakhsh v. Zia Ullah and others (1983 SCMR 988) to contend that oral sale was no sale in the eye of law. The said case of Muhammad Bakhsh related to land in the former State of Bahawalpur to which provisions of sections 4 and 9 of the Transfer of Property Act, 1882, had been extended. This, however, is not true of area in which the land involved in the instant case is situate. The said precedent case, therefore, being distinguishable, is of no help to the petitioners. At the time when the sale in question was made it could be effected orally and as such the suit for pre-emption wasp competent. There is, thus, no force in the argument of the learned counsel that sale in question was not pre-emptible.
6. Resultantly, this civil revision fails. It is dismissed in limine.