The following two law points were raised by the learned counsel for the petitioners in support of this revision petition.
(i)That the documentary evidence produced by the respondents/pre---emptors such as Exs.P.2 and P.3 clearly establish that the land owned by them in the village was not assessed to land revenue, therefore, they could not have been held to be the owners of the estate. Reliance has been placed on Salehon Muhammad and another v. Shera and others (1977 SCM R 297), Abdul Hamid and 2 ethers v. Mehrban A.I (1989 CLC 195) and Chanan Din v. Chanan Din and others (AIR 1933 Lah: 213)
(ii)That the evidence of the parties on issues Nos. 3 & 7 has been mis-read and kept out of consideration.
2. As to the first mentioned contention learned counsel for the respondents raised an objection that this ground of attack against the decree of the learned trial Court though raised in the memo: of appeal filed by the petitioners before the learned lower appellate Court but was abandoned during arguments which has been specifically mentioned in the impugned judgment of the learned lower appellate Court dated 1-10-1988. I have examined the said judgment in which it has been so recorded. Learned counsel for the petitioners in these circumstances failed to satisfy me that he could urge this ground in this revision petition. His submission was that this ground was very much pressed during the arguments and the learned lower appellate Court has wrongly observed that the same was not pressed. In the grounds of revision petition before this Court no ground has been taken that this finding of the learned lower appellate Court was wrong. No affidavit of the learned counsel who argued the appeal before the learned lower appellate Court on behalf of the petitioners has been filed. In these circumstances there are no good grounds to dis-believe the finding of the learned lower appellate Court recorded in the impugned order that the petitioners did not press the said ground. This view finds support from judgment reported as Ghulam Muhammad v Malik Abdur Qadir Khan (1983 PSC 164) on which reliance was placed by the learned counsel for the respondents. This argument, therefore, cannot be entertained at this stage and is hereby dis-allowed.
3. However, the second argument of the, learned counsel for the petitioners that the findings of the two Courts below on the issue of waiver suffer from mis-reading and non-reading of evidence, on examination of the record is found to have considerable force. It was stated by Muhammad Hussain s/o Fazal Dad a witness produced by the petitioners who was examined as P.W. 2 that the bargain of sale was struck against an amount of Rs.1,40,000/- as consideration and the plaintiff got the same settled. He further stated that the plaintiff was asked to purchase the land if he wanted but he refused to do so as according to him he did not have the money. In cross-examination he further explained that it was 4/5 days prior to agreement. Ex.D.1 that Anwar went to the plaintiff and asked him if he wanted to purchase the land. He was present at that time and the plaintiff thereafter himself came and expressed his intention not to purchase the land. He was not suggested in the cross examination that whatever he was stating was false or wrong. Muhammad Sadiq DW.3 who was Lambardar of the village stated that Muhammad Sabir the plaintiff was present at the time of execution of documents relating to sale such as EX.D1 and D.2. Muhammad Anwar one of the defendants examined himself as DW.9 who stated that the plaintiff was offered to purchase the land who expressed his unwillingness on account of non-availability of the money.
This part of his statement was not challenged in cross-examination, therefore, according to fairly settled law it shall be taken to have been accepted as correct. Having the knowledge that this much evidence had been brought on the record, the respondent/plaintiff when examined himself as PW.2 subsequent to the recording of the above-said evidence of the present petitioners, did not state that he was neither present at the time of settlement of the bargain nor was he offered to purchase the land and that he did not refuse to purchase on account of non-availability of money.
The two Courts below while answering issue regarding waiver based their finding only on that part of the evidence of witnesses of the petitioners in which they stated that the plaintiff was also present at the time of settlement of bargain and held that this fact did not constitute waiver on his part whereas the other part of evidence that he was offered to purchase and refused to do so on account of non-availability of funds was not considered. This is clear case of not only mis-reading but also non-reading of material piece of evidence having material bearing upon the decision of issue of waiver.
4. Having realized this difficulty learned counsel for the respondent tried to over-come it by arguing that the learned lower appellate Court while discussing the evidence of the parties in general in the earlier part of the judgment relating to narration of facts have noted that the witnesses of the petitioners stated that the plaintiff was offered to purchase the land but he refused therefore, a finding shall be deemed to have been rested on this part of evidence also.
5. I am afraid, in my opinion the argument is plainly unsound; In the presence of the said evidence it cannot be held that issue of waiver has not been proved. It has been sufficiently established by the petitioners that the respondent was asked to purchase the land if he wanted but he declined to purchase it on account of want of funds., As has been observed above this part of evidence as contained in the statement of DW.9 was not challenged in the cross-examination and DW.2 who also made a similar statement -in evidence was also not cross---examined suggesting him that this part of his statement was false and that no such offer was made. The silence of the respondent/plaintiff when he appeared as his own witness as PW.2 on this matter if considered alongwith the said evidence of it can safely be concluded that it was established beyond reasonable doubt that the respondent waived his right to pre-empt the land.
6. Learned counsel for the respondent faced with this situation vainly argued that no evidence was led that the respondent/plaintiff was offered to purchase the land for a particular specified sum, therefore, he could not be held to have waived his right.
7. The argument is wholly fallacious. It is in the evidence of DW.2 that the sale was settled at Rs.1,40.0(10/- at which time the plaintiff was. Present and he was offered to purchase the land and he declined to do so for the reason of non-- availability of funds. It is clearly spelt out from the evidence of DW.2 and DW.9 that the plaintiff was offered to purchase the land at the said settled amount, Even otherwise it is also clear from this evidence that the plaintiff knew the amount of Rs.1,40,000 which was to be paid as price in case he decided to purchase it, and it was after this that he expressed his inability due to non--availability of funds. Had he not been made aware or it was not known by him as to for what price the land was to be purchased by him he could not possibly express his refusal to purchase for want of money.
R. The two Courts below for the foregoing reasons have acted with material irregularity and illegality in deciding issues Nos.3 and 7 regarding estoppel and waiver against the petitioners due to non-consideration and mis-reading of evidence of the petitioners as discussed above. The findings on these issues are reversed and they arc decided in favour of the petitioners. The impugned judgments and decrees of both the Courts below are not sustainable. This revision petition is accepted. The judgments and decrees of both the Courts below are set aside and the suit filed by the respondent is hereby dismissed with no order as to costs.
H.B.T./F-138/L Revision accepted