This Revision assails the judgment and decree dated 23-10-1985 passed by the learned District Judge, Okara, whereby he reversed the decision of the trial Court and dismissed the petitioners/pre-emptors' suit for pre-emption on the ground of waiver.
2: The respond-nt-vendee contested the suit on the ground of waiver on the part of the petitioners stating that before completion of the sale, the vendors had made proclamations through loudspeakers of all the five mosques in the village informing the public-at-large that they were selling the land in dispute for a sum of Rs. 30,000; that anyone desirous of purchasing it might come forward to avail the offer; that they even personally persuaded the petitioners to purchase it, but they were disinclined on account of paucity of funds and thereby were precluded from seeking its pre-emption.
3. Appropriate issues were framed by the trial Court which repelled the objection bf estoppel and decreed the suit. In appeal, however, the learned District Judge, Okara thought that the oral evidence of D.Ws. Ghulam Hussain, Ghulam A.I and Anwar A.I was enough to establish the open offer made to all concerned including the petitioners through the proclamations made from the loudspeakers of the mosques and that they were estopped by their conduct from subsequently pre-empting it. He accordingly reversed the decree passed by the Court of first instance and dismissed the suit.
3-A. Ch. Muhammad Farooq for the petitioners stressed that waiver in the context of pre-emption was not a mere term of art as it had to be essentially proved through the procedure laid down in sections 19 and 20 of the Punjab Pre---emption Act, 1913 and that since no notice envisaged therein was admittedly issued through Court, it was inconceivable to estop them from exercising their better right of pre-emption. He maintained that wisdom behind prescribing issuance of such a notice through the agency of the Court was to see that a vendee may not perjure by bringing false evidence in regard to the pre-emptors' conduct which could comparatively be better proved through the aegis of the Court. He added that the three Maulvis who made the proclamations on different loudspeakers were not examined as witnesses and, therefore, the rule of producing direct evidence contemplated by Section 60 of the Evidence Act was not followed. He relied upon Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133 wherein even a bidder was held not precluded from pre-empting the sale because such participation in the bid on his part was not considered to be ---express refusal to purchase the land or relinquish his better right of pre- emption. Lastly, he cited Ata-ul-Haq and another v. Master Ghulam Rasool 1979 SCMR 401 in support of the contention that mere oral testimony of a few witnesses in proof of waiver did not suffice. On the other hand, Mr. Muhammad Mohsin, Advocate contended that Baqri's case was distinguishable inasmuch as the present case did not involve the petitioners taking part in any bid.
He urged that waiver being a question of fact, concurrent findings of the Courts below thereon could not be disturbed in Revision. He sought support for this view from Khan Muhammad v. Naseer Ahmad Niazi 1986 CLC 2671 and Government of N. --W. F. P. v: Malik Said Kamal Shah PLD 1986 SC 360.
4. The dictum propounded in Ataul Haq's case by the Supreme Court appeared to be more akin to the facts of the present case. It was thought that mere oral testimony of a few witnesses was not enough proof of waiver on the part: of the pre-emptors. Correspondingly, the requirement of issuing notice through Court under sections 19 and 20 ibid; was rather indispensable. Evidently the reason was to get first-rate evidence because a very vital consequence was to flow from it. The law would rather jealously insist for unimpeachable evidence before a pre-emptor could be denied right of pre-emption on the basis of his own conduct. If the vendee-respondent was serious to estop the petitioners, he should have, as a matter of course and caution, arranged remittance of a notice to them through Court so that all their contrivances to get rid of waiver would have been unavailing. Oral evidence by its nature could not entirely rule out perjury. Muhammad A.I, D.W.2 admitted having been involved in litigation against a Bhanja of the petitioners. At least his deposition was not free from taint. The testimony of Ghulam Hussain, D.W.1 was equally of no significance because he himself did not make the proclamations. The concerned Maulvis should have been produced. Again, the proclamation, if any, was one-sided, and by no means established express refusal on the part of the petitioners to relinquish their better right of pre-emption. That is why in Baqri's case even the act of bidding on the part of a prospective pre-emptor did not suffice to prove conscious abandonment of his right of pre-emption. The learned District Judge seems to have erred in implicitly relying upon a word of mouth of a witness or two to show a sort of one--- sided relinquishment of the petitioners' right.
6. No doubt the concurrent finding of fact cannot be disturbed in Revision, but the: law on the point was misapplied. Lately in Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 a Revision was held to be the remedy of right and, therefore, according to counsel it permitted reappraisal of evidence even on the question of fact. Without going that far, the law enunciated by the Supreme Court was not applied in this case and the omission itself calls for interference.
7. As a result, the revision petition is allowed, the impugned judgment and decree are set aside and instead those of the trial Court are restored. If the pre-emption amount has not been deposited so far, it shall be deposited by or before the 19th of March, 1989.