JUDGMENTAMJAD KHAN, J.- This is a second appeal by a plaintiff whose pre-emption suit, though decreed by the trial Court on 22.9.1984, has been dismissed in the appeal below on 28.11.1984 upon reversing the findings in her favour reached by the trial Court under issues No.1 and 2 relating respectively to waiver and estoppel.
2. The necessary facts are that sale of 17 kanals 19 marlas of agricultural land made on 18.6.1977 through a registered deed (Ex.D.2) in favour of the respondent Asmat Ullah for a consideration of Rs.70,000/- was sued out by the appellant Mst.Nasreen Akhtar to be pre-empted on the grounds of being a cosharer in the suit land and also an heir of the vendor, Muhammad Afzal Khan who, it was claimed, had sold the land and the defendant purchased it without informing her of the intended sale and Without giving her any notice, much less upon opportunity provided to her to exercise her right to get the land out of Court.
3. Vendee admitted superiority of her pre-emptive right but contested the suit on the pleas, among others, of waiver and estoppel founded on a writing borne on the record as Ex.D.1; allegedly written by Muhammad Tufail, a Munshi of the vendee and witnessed by his driver Ghulam Sarwar whose testimony was disbelieved by the trial Court for the reason of their being the private servants of the vendee whose own evidence was materially different with regard to the circumstances attending the execution of Ex.D.1 which was neither signed by the vendor nor even by the husband of the plaintiff who was also her attorney and had rather denied authenticity of Ex.D.1. Even the signature thereon purporting to be of the plaintiff appeared to the trial Court to be materially different from those available on the record of the suit and Ex.D.1 was thereupon refused by the trial Court to be accepted a genuine document. In result, her suit was decreed, as already stated, in her favour on 22.9.1984 upon payment of the ostensible sale- price of Rs.70,000/- within eight days (upto 30.9.1984).
4. . Pivotal questions of waiver and estoppel were agitated by the vendee in his appeal in the District Court which came up for hearing before an Additional District Judge who, on the basis of his visual comparison of signatures, reached a different conclusion with regard to the execution of document Ex.D.1 and believing it to have been executed by her, proceeded to accept the appeal without attending to the other reasons appearing in the trial Court's judgment and dismissed her suit by the judgment dated 28.11.1984.
5. In this appeal, there is not involved any dispute with regard to superior right of pre-emption of the plaintiff and the sale having been made for Rs.70,000/-. Argument of learned counsel for the appellant is that there is no evidence whatever to show that the plaintiff was given an opportunity to purchase the property for Rs.70,000/- when a definite agreement to purchase the land had been entered into between the vendor and the vendee and that the evidence on the record was vague and indefinite event to hold that the plaintiff was at any time asked to purhehase the property.
Execution of Ex.D.1 by the plaintiff is also denied but learned counsel for the vendee has opposed this part of the contention as relating to a point of pure fact not liable to be re-opened at this stage of second appeal. Although in my opinion, there do exist certain definite features of the case which have escaped notice of the appellate Judge whereby his finding on the question of fact, relating to execution and genuineness of Ex.D.1, may be rendered not binding for the purposes of this second appeal, yet, in the view that I hold of the law relating to estoppel and waiver in pre-emption cases; it is not necessary to enter upon the exercise of reconsiderig the question as to whether or not Ex.D.I was in fact executed by the plaintiff and I proceed on the premises laid in the appeal below which, by its mere self, does not happen to be sufficient in law for a finding being returned against the plaintiff under issues No.1 and 2.
6. Pleas of waiver and estoppel are quite frequently raised against pre- emptors without properly comprehending their implications and scope for their application in the particular facts of different cases and findings with regard to their being proved are equally usually returned by the Courts without realizing their distinction; sometimes on the basis of evidence led with regard to assurances allegedly extended by prospective pre-emptors and at others on the basis of their participation in the striking of bargains of sales and at still others, on account of their mere presence at the time of settlement of transactions and omission to exhibit any interest in the happenings. Superior courts have time and again succinctly laid down the law becoming applicable in particular situations arising in different cases and a plethora of reported cases is available on the subject. I do not propose to attend to them right now but consider it necessary that ground may first be cleared by identifying the respective fields of the two rules of estoppel and waiver.
Whereas estoppel is a rule merely of disability from adopting a position by a party contrary to that which had previously been held out by it either expressly or impliedly; placing faith in the correctness whereof the other party had altered its position disadvantageous^. This is the rule which stands in the way of a pre- emptor seeking aid of a court for redressal of his grievance. In this rule get involved the considerations as to whether any representation was ever in fact made by the plaintiff-pre-emptor either by a statement or though a conduct proved and what may really be the implications of the conduct attributed to him? Side by side therewith goes the question as to whether or not the true state of facts was already known to that other party? It is with regard to these particular aspects of the disputes that Courts have always insisted upon the plea of estoppel being proved on the basis of cogent and convincing evidence. See for instance Abdul Karim and another v. Ali Gauhar (P.L.D. 1985 Lahore 552). Once a particular conduct manifested or a statement allegedly made by a pre-emptor is thus proved then the next step which has to follow thereupon is the one relating to the effect thereof. Statements conveying clear intentions and unimbiguous conducts, when proved on the basis of cogent and convincing evidence do not present any difficulty in the application of the rule of estoppel because they stand on a clear pedestal. However, certain conducts of pre-emptors and even their inaction in certain situations does give rise to controversial situations, some facts whereof have already been considered by me in Hakim Ali v.
Fazla (P.LJ. 1986 Lahore 150 = 1986 C.L.C. 1183) and Falak Sher and 5 others v. Muhammad Hanif and another (P.L.D. 1987 Lahore 91) and the subject may be found therein dealt with at quite some length.
7. Rule of waiver has an altogether different connotation. It actually is, as held in Hafiz Hassan Muhammad and 2 others vAbdul Hameed and 2 others (P.LJ. 1982 S.C. 357), a conscious abandonment of a known legal right. In the wake of application of this rule a large number of questions of varying nature may arise, namely, what is the nature of right of pre-emption, what exactly is the point of time when such a right may become activated or be infringed to'become capable of giving rise to the remedy of vindicating the infringement by means of a suit? It is not necessary to herein consider such questions which may better be left for being attended to in some other appropriate case.8. As regards the case in hand, there does not exist any evidence on which finding may be possible to be given that the plaintiff had waived her right to purchase the suit land for Rs.70,000/-. Evidence for the plaintiff is that vendor did not give her any notice that he intended to sell the land to the defendant. There was no question asked in cross examination as to whether the vendor and vendee approached the plaintiff at any time after the agreement to sell had been arrived at between them and asked her to purchase the land for Rs.70,000/-, if she so wished. Sole reliance of the vendee is on Ex.D.1 which does not meet that requirement about the point of time of the alleged refusal to purchase and much less does it convey a refusal made at a price whereat the land in suit was actually sold. The vendee has rather stated in his evidence that it was some 3/4 months before the sale (made on 18.6.1977) that the plaintiff had made the representations contained in Ex.D.1 which, however, bears the same date (18.6.1977). He has also made a general statement that the plaintiff had been orally asked to purchase the land and that she had declined it. He did not say as to when, where and for how much amount was the plaintiff asked to exercise her right to purchase the land in suit on account of her privilege to pre-empt. The statement of vendor Muhammad Afzal Khan, made as D.W.l, rather gives a complete lie to the case of the vendee. He has clearly said that before making the sale he did not ask the plaintiff to purchase it. Above-mentioned is all the evidence upon which the lower-appellate Court has given the finding that the plaintiff had refused to purchase the land and had, therefore, waived her right of pre-emption which she was hence debarred from exercising in this suit.
Even if it is held on the evidence on record that before the sale had been entered into between the vendor and the vendee, the plaintiff was approached by them and she assured them that she did not wish to purchase the land, that cannot debar the plaintiff from exercising her right of pre- emption. In Govindas v. Ismail (A.I.R. 1950 Nagpur 22), it has been held that the purchaser who settles his bargain with the vendor and buys property relying on the prior assurance of the pre- emptor that he will not pre-empt, cannot successfully set up the plea of estoppel or waiver in a suit for pre-emption.
In that case, it was observed that the pre-emptor, who, even if before an agreement of sale, assures the purchaser that he will not pre-empt, is not making any representation about any fact except in so far as his intention at that time is a fact, and further that when there is not even an agreement of sale between the vendor and the purchaser, the assurance of the pre-emptor that he will not preempt does not amount to any representation as to an existing fact. In Kanhai Lai v.
Kalka Prasad (ILR 27 All 670), at page 676 it was held; ".............. In order to debar a party entitled to pre-empt a sale from exercising his right an opportunity to purchase must be given when a definite agreement to purchase at a fixed price has been entered into with a stranger. It is not enough to offer property to a person entitled to pre-empt before an agreement to purchase has been entered into with a third party
9. In the instant case, there is no averment of the defendant and much less is there the proof that the plaintiff was asked to purchase the property for Rs. 70,000/- when a definite agreement to purchase the land for that price had been entered into by Muhammad Afzal Khan with the vendee Asmat Ullah. Having regard to the decisions referred to above, the finding of the lower appellate Court that the plaintiff refused to purchase the land cannot be sustained.
10. Result, therefore, is that the plaintiffs appeal is allowed upon setting- aside the findings with regard to waiver and estoppel reached in the appeal below under issue Nos.1 and 2. Appellate decree passed on 28.11.1984 with regard to dismissal of the plaintiffs suit is set-aside and the one passed by the trial Court on 22.9.1984 to decree her pre-emption suit is restored but because date for payment of money fixed therein has long since expired and, if deposit was not accordingly made thereunder, then a fresh suitable date for the purpose will have to be fixed by the trial Court after notice to the parties. File of the suit will be remitted to the trial Court to be so dealtwith by it.
11. There is no justification for disallowing the plaintiff her costs in all the Courts. The appellant shall, therefore, get her costs in case the price of the land is paid by her in accordance with the direction.
This Second Appeal succeeds as above.