SAJJAD AHMED SIPRA, J.-This revision is directed against the judgment and decree passed by the learned District Judge, Rahimyar Khan, on 8.5.1976. The learned District Judge accepted the appeal of the respondent Taj Muhammad, and the judgment and decree of the trial Court was set aside, and the suit of the respondent/appellant decreed on payment of Rs.1000/ He had further directed to deposit the pre-emption momey of Rs.1000/- after deducting 1/5th of the pre-emption already deposited by him on or before 8.6.1976, otherwise, the suit shall stand dismissed with costs.
2. The facts giving rise to the present revision petition are that Taj Muhammad, respondent/plaintiff had filed a suit before the learned Civil Judge, Rahimyar Khan Camp at Khanpur, on 20.2.1970, for possession of the suit land to pre empt the alleged sale in favour of the petitioner/defendant on the ground that the respondent had got a superior right of pre emption qua the petitioner/defendant. The respondent/plaintiff contended that the petitioner/defendant purchased the suit land from one Khuda Bux vide mutation No.994 dated 7.2.1969, for ostensible price of Rs.1000/-. The respondent alleged that the amount of Rs.250/- was actually paid. He further contended that he was the son of the vendor, and, therefore, had got a superior right of pre emption qua the petitioner/defendant.
3. The petitioner/defendant resisted the suit, and contended that the transaction in question was not a sale and the suit land was not, therefore, preemptible. He contended that he obtained the land in suit from the respondent's father in consideration of his daughter's marriage with the respondent/plaintifPs brother. He, however, admitted that the respondent is the son of Khuda Bux, the vendor. The following issues were framed from the pleadings of the parties.
1. Whether the plaintiff has got a superior right of preemption? OPP 1-A. Whether the plaintiff is estopped to bring this suit? OPD
2. Whether the sum of Rs.1000/- was actually paid or fixed in good faith? OPD.
3. If issue No.2 is not proved, what was the market value of the suit property at the the of sale? OPD.
4. Whether the land in suit has not been sold and is not, therefore, preemptible? OPD.
5. Relief.
4. The learned Civil Judge decided issue No.1 in favour of the respondent/plaintiff because this issue was unnecessarily framed, as the petitioner/defendant had admitted in his written statement the superior right of preemption of the respondent/plaintiff. The issue No. 1-A was decided in favour of the petitioner/defendant, as the respondent/plaintiff himself admitted in cross-examination that he had asked his father to sell the suit land to the petitioner/defendant because he needed the money. He admitted that he was present at the the when the bargain was struck. Since the land in question was sold with the consent of the respondent/plaintiff, therefore, the learned Civil Judge was of the view that he was now estopped to bring the suit as he, by his conduct, made the petitioner/defendant to believe that he would not preempt such sale. Issues No.2 and 3 were decided against the petitioner/defendant, as there was no evidence on these issues. Issue No.4 also was decided in favour of the petitioner/defendant as the learned Civil Judge concluded that no doubt the onus was placed on the petitioner/ defendant to prove this issue but the onus of proof never remained stagnant. It continued to shift from party to party, and mere assertion of the petitioner/defendant that the transaction in question was not a sale was sufficient to discharge the onus placed on him. But now the onus had been shifted to the respondent/plaintiff, who had not discharged it altogether. Since it was not proved that the transfer took place in consideration for money, therefore, there was no alternative but to hold that the transaction in question was not a sale and the suit land was not preemptible. Therefore, the learned Civil Judge dismissed the suit of the respondent/plaintiff with costs.
5. Feeling aggrieved by the judgment and decree the learned Civil Judge, the respondent/plaintiff went in appeal. The learned counsel for the respondent/appellant had contested issues No.1-A and 4 before the learned District Judge. The Finding of the learned appellate Court on issue No.1-A was that the mere presence at the the of sale in dispute or mere giving a consent is not sufficient for the estoppel, something more should have been done, and, therefore, reversed the findings of the trial Court on this issue.
6. On issue No.4, whether the land in suit has not been sold and is not, therefore, preemptible, the learned appellate Court came to the conclusion the DW.I being inimical to the father of the plaintiff could not be relied upon, and DW.2 had stated that the land in suit was given to the petitioner- defendant in consideration for his daughter's marriage with respondent-plaintiffs brother, and had further stated that this was duly recorded in the nikah-nama, but the nikah-nama had not been produced by the petitioner/defendant. Therefore, the plea was false, otherwise the nikah- nama would have been produced in evidence. It was furhter held by the learned appellate Court that Ex.Pl, the copy of the disputed mutation established that the suit land was sold to the petitioner- defendant for Rs.1000/-, and that this fact had not been contradicted by any documentary evidence, and that if it is admitted for the sake of argument that the suit land was for the consideration of marriage of his grand-daughter with the son of the vendor, even then this contract was against public policy and void ab initio. Therefore, it held that the trial Court had erred in deciding this issue in favour of the petitioner-defendant, and the same was reversed and decided against him The learned counsel for the appellant before the learned appellate Court had admitted the sale price for the suit land to be Rs.1000/- and that issue No.2 was decided accordingly. Therefore, the learned appellate Court reversed the Findings of the learned trial Court on issues No.1-A and 4, and accepted the appeal, and judgment and decree of the trial Court was set aside, and the suit of the plaintiff decreed on payment of Rs.1000/-.
7. The petitioner's contention is that the impugned judgment and decree passed by the learned District Judge, reversing that of the learned trial Court is against law, facts on record and is result of material irregularity and illegal exercise of jurisdiction, therefore preemptible to be set aside. The learned counsel for the petitioner made a lengthy submission on these to issues and contended that the sale had not been proved, and there was sufFicient evidence on the record to prove estoppel against the respondent- plaintiff.
8. I shall First deal with the issue No.4 i.e. Whether the land in suit has not been sold and is not, therefore, preemptible. The perusal of the record shows that as the onus of proof of this issue was on the defendant, and that the evidence produced by the petitioner/defendant in this respect had failed to discharge the burden thus placed on him. As pointed out by the learned appellate Court that DW.I being inimical towards the father of the respondent plaintiff could not be relied upon, and that DW.2, Barkat Ullah, Nikah Registrar had stated that the land in suit was in consideration of the marriage, and that the same had been recorded in the nikah-nama, but the nikah-nama had not been produced by the petitioner-defendant in evidence, and that there was no other material evidence on the record to rebut the sale having been effected through the mutation, Ex.Pl.
Therefore, I am not inclined to interfere with the findings arrived at by the learned appellate Court in this respect.
9. The next is issue No.1-A i.e. Whether the plaintiff is estopped to bring this suit. This issue was decided in favour of the petitioner- defendant, and the respondent-plaintiff himself had admitted in cross- examination that he had asked his father, the vendor, to sell the suit land to the petitioner-defendant, the vendee, because he needed the money. He further admitted that he was present at the the when the bargain was struck. Since the land in question was sold with the consent and approval of the respondent-plaintiff, therefore, he was estopped from filing the present suit as he,by his conduct, made the petitioner-defendant to believe that he would not preempt such a sale. The learned appellate Court had reversed the finding on this issue on the basis that mere consent or presence did not amount to waiver, and, therefore, did not estop the respondent-plaintiff from preempting the suit land. However the learned counsel for the petitioner contended that the learned appellate Court had not taken the evidence of the plaintiff in this respect into due consideration while reversing the findings on the issue. To support his contention he relied on Muhammad Sharif vs. Abdul Majid (1982 CLC 208). He further contended relying on the aforesaid authority that the trial Court's view of evidence should not have been over turned. Since it had added advantage of watching the conduct or demeanour of the witnesses. The next contention of the learned counsel was that as the plaintiff-respondent was not only present at the the of prosecution but had also proved the sale and urged his father to sell as he needed money.
Therefore, in view of the rule laid down in Mian Shah Nawaz Khan vs. Allah Pitta etc. (NLR 1982 AC 100), Muhammad Bakhsh vs. Nisar Ahmad (1985 CLC 1974), Amanat Ali and 3 others vs. Haji Muhammad Ali (1984 CLC 362), and Naseer Ahmad vs. Arshad Ahmad (PLD 1984 SC 403). The present case was one of waiver, and it stood established beyond doubt that the respondent- plaintiff was estopped from filing the present suit.
10. In rebuttal, the learned counsel for the respondent-plaintiff contended that mere presence of the respondent-plaintiff at the stage of negotiation of sale does not amount the waiver of the right of preemption, and relied on AIR 1949 Lahore 299 to support his contention. He further referred to Hafiz Hasan Muhammad and 2 others vs. Abdul Hameed and 2 others (PLD 1982 SC 159). Wherein it was held that the waiver is a conscious relinquishment or surrender of right, and that mere presence at the the of the sale is not considered sufficient to amount to waiver; and that mere presence or even unsuccessfully bidding at an auction cannot be considered to amount to waiver.
He further relied upon Ghulam Muhammad and another vs. Muhammad Younis (1986 CLC 500).
Wherein it was held that "if a son or relative of a vendor in fact is unaware of the sale, then a suit broughtby him to preempt the sale, can be no standards be branded as collusive, so as to defeat his right of preemption." Therefore, he concluded that there was no waiver by the respondent- plaintiff, and he was not estopped from preempting the sale of the suit land. He further pointed out that the respondent-plaintiff was married and residing at a distance of one acre from the house of his father. Therefore, the authorities cited by the learned counsel for the petitioner-defendant is not relevant to the facts of the present case.
11. After having heard both the learned counsel, and after having perused the record, and gone through the authorities relied upon by the respective parties, I am of the view that the learned appellate Court had misread and misconstrued the evidence of the plaintiff-respondent and had thus committed a material irregularity. Here, it may be pertinent to reproduce the relevant testimony, which is as follows:- Cross-Examination PW.I (respondent/plaintiff)
Therefore, as is clear from the above in this case that not only was the respondent-plaintiff present at the the of the transaction but he had also himself advised his father to sell the property. In this case, not only is he participating but he is acting consciously and in a positive manner in approving the sale of the suit land to the petitioner-defendant. Therefore, it is a clear case of waiver, hence of estoppel against respondent-plaintiff.
12. It will be pertinent to reproduce here the rule laid down by the Honourable Supreme Court in Naseer Ahmad vs. Arshad Ahmad (PLD 1984 Supreme Court 403), and relied upon by the learnd counsel for the petitioner, and which is later in the to the authorities cited by the learned counsel for the respondent. Herein', their Lordships of the Supreme Court held in para 7 at page 406 that "it is universally accepted that preemption is a piratory right, where a person plugs in his claim to purchase a certain place of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the preemptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that the, They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for preemption with the object (as appears to be the intention in the present case) to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which the price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the the of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for preemption, which cannot but lead one to assume that there was collusion between the to. We feel that such suits are very often mala fides because if the preemptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend 20 years of his life in litigation and incur huge expenditure which was in many cases even more than the actual price of the land or the property at the the of the sale or auction. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. .The latter does not, therefore, deserve relief through Courts of law."
13. In view of this judgment of honourable Supreme Court and for the reasons stated above, the judgment of the lower appellate Court is not sustainable in law, and is hereby reversed. Resultantly, the Civil Revision is accepted, and the decree of the lower appellate Court is set aside and that of the trial Court is restored with costs throughout.