This Civil Revision arises from the judgment/decree dated the 9th of April, 1985, passed by the learned Addl. District Judge, Kasur, whereby he accepted the appeal, held that the petitioners- plaintiffs were estopped to pre---empt the sale, and consequently dismissed their suit for pre- emption
2. Since the only question before this Court presently was that of estoppel, other details were unnecessary. The petitioners-plaintiffs sought to pre-empt the sale on the qualification of their being owners in the 'taraf, patti and the estate' whereas the respondents-vendees, according to them, were not such owners before the sale. The latter contested the suit pleading, inter alia, that the former were estopped by their conduct in bringing the suit inasmuch as they themselves were instrumental in bringing about the sale: in their favour and, besides, had refused to purchase it.
3. Issue No. 3 framed about this contention was held against the vendees by the trial Court which as a consequence decreed the suit. In appeal, however, the learned Addl. District Judge while re- evaluating the evidence upset the finding and after extensively quoting from Naseer Ahmad v.
Arshad Ahmad (PLD 1984 SC 403) drew the conclusion that the petitioners were barred by their conduct in maintaining the suit. He felt satisfied that the 'testimony of D.Ws. 3, 4 and 5 sufficed to establish that the petitioners were present at the 'dera' of the vendor at the time of the bargain; that they refused to purchase the land; that their depositions were illegally rejected either on the ground that one of them was related to the vendee or the other could not tell about the age of one of the pre-emptors; and that filing the suit on the last date of limitation after deep silence of a year was indicative of their doubtful conduct. He noted conversely that the rebuttal produced through oral words of ,P.Ws. 1, 2 and 3 was vague and inconsistent.
4. The judgment of reversal has been seriously challenged primarily on the ground that estoppel may not be proved only by examining a couple of witnesses without any documentary corroboration. It teas emphasized that the Punjab Pre---emption Act itself by means of sections 19 and 20 provides necessary mechanism to preclude a potential pre-emptor from' asserting his right and that correspondingly if the procedure laid down therein was not observed, the pre---emptor could not be as a corollary estopped from asserting his better right secondly, it was argued that the evidence, if at all, proved mere presence of the petitioners at the time of sale without explaining why out of the entire land owners of the estate, they alone were made to attend the bargain. The contention was that the petitioners were a few among many having the same qualification and that there must have been some special reason to pick them out for their alleged association with the sale. Thirdly, it was claimed that mere presence of the petitioners in the bargain was not enough to deny them their right of pre---emption and that in order to achieve this object, it must have been established that they had declined an offer to purchase the land at a specified price. In other words, the element of price was said to be very essential inasmuch as any offer without specifying the sale price was invariably held to be inadequate. In Ghulam Rasool etc. v. Ghulam Hussain (NLR 1980 UC 305), mere presence of the pre---emptor was held not sufficient to constitute waiver. Similarly., in Ghulam Muhammad v. Muhammad Bakhsh etc. (1980 CLC 2063), even attestation by a pre-emptor of the sale deed did not preclude him from pre-empting of the sale. Fourthly, reliance on the Naseer Ahmad's case was stated to be, in fact, misplaced because that was a case of a son pre-empting the sale of a father. The observation made therein obviously was that such close relations not only have the knowledge of the sale but it has even their blessings and, therefore, suits on their behalf would be often mala We. The present case was distinguished on the apparent ground that the petitioners were not so closely related to the vendors, nor was there any ostensible reason for deeply associating them with the deal. They statingly rested upon the qualification of being owners in the estate without any reason on the part of the vendors to repose such a deep confidence in them,
5. On the other hand, counsel for the respondents tried to support the impugned judgment by pointing out that mere reversal of the judgment did not call for interference in Revision whose scope was very limited. Mst. Began etc. v. Muhammad Yousaf etc. (NLR 1981 S.C-1. X91) and Board Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood (1985 CLC 657) were referred to in support of the contention that even if the judgment of the lower appellate Court was erroneous in coming to a different conclusion, it could not be upset in the exercise of revisional jurisdiction.
6. It will be appreciated that the lower appellate Court proceeded chiefly on the assumption that the petitioners were present in the bargain. The rule enunciated in the cases of Ghulam Rasool etc. And Ghulam Muhammad suggests something contrary, namely, that mere presence or even attestation of the sale---deed by a potential pre-emptor would not suffice to estop him from bringing the suit. The pith of waiver is that the pre-emptor should have been asked to purchase the land at a designated sale price but the evidence does not disclose if the so-called offer made to him was accompanied by a specified sale price. The one-sided view expressed by the oral evidence that the petitioners refused to purchase was not enough as the refusal should have been correlated to the price offered to them. May be if the price demanded of them was higher than the one paid by the vendees, they had a good reason to refuse to purchase the land. It is, therefore, the typical price forming the consideration for the sale that binds the pre-emptor. This element was essential even in terms of the Naseer Ahmad's case quoted extensively by the lower appellate Court. There was no discussion in regard to the element of price and, therefore, applying the doctrine of waiver was quite illegal.
7. It is true that mere difference of opinion between the two courts below would not, by itself, call for interference but in this case the rule of law, namely, the ingredient of offering the land to the pre- emptor at a certain price, was absent. Without it, legally there could be no waiver. Secondly, as already remarked, mere presence at the time of sale was equally inconsequential. The lower appellate Court was in error in this behalf to give a finding in favour of the respondents. Next, the so-called silence for a year and then filing the suit on a last date was equally of no consequence because the suit was after all within time. Fixation of limitation for a suit enables the suitor to bring it any time before its expiry. It would be wrong to assume that failure to file it earlier was necessarily relatable to so-called conduct of the pre-emptor about waiving his right.
8. In spite of the piratory nature of the right of pre-emption, section 19 of the Punjab Pre-emption Act provided a special procedure for denying the pre---emptors their, right to pre-empt the sale.
Admittedly the procedure contemplated by the said provision of law was not followed, nor was any reason shown as to why it could not be adhered to. If the respondents were so sanguine or vigilant, or conversely the petitioners were so agreeable, they should have all acted in concert to make any writing against possible suit. Absence of any such arrangement clearly presupposed that the petitioners had not abandoned their right.
9. The above resume reveals that the decision rendered by the lower appellate Court is not sustainable. The revision petition is accepted, the impugned judgment and decree are set aside and instead those of the trial Court are restored, namely, the suit stands decreed. If the petitioners pre-emptors have not so far deposited the pre-emption amount with the Court for the respondents --vendees, they shall now deposit it by or before the 27th of June, 1989, failing which their suit shall stand dismissed. Otherwise, the parties shall bear their own costs.
H.B.T/S-483/L.
Petition accepted