1. ' Second appeal is by the vendees of the land and defendants in the preemption suit. Pre-emption suit was decreed on 19-6-1968 by the learned trial Court. Appeal filed against the decree was dismissed by learned District Judge in limine, on 17-9-1968 and findings recorded by the trial Court endorsed.
2. ' First, the facts, 828 kanals, 1 marla of land situate in revenue estate Dera Gobind was allotted to and confirmed in the name of Syed Abdul Wahab. By deed of sale registered on 21-9-1966, he sold the above land to Allah Ditta and his brother Gaman for consideration of Rs, 20,700. Saeed Ahmad as son of the vendor claimed preferential right and sued to pre-empt the sale on 18-9-1967 by filing a pre-emption suit in the Court of Administrative Civil Judge, Bahawalpur.
3. ' Vendees entered defence, and resisted the pre-emption suit filed against them. It was averred that as proper court-fee was not paid within the time, suit was barred by limitation; that land in suit was evacuee and its sale was not preemptible; that the sale was effected with the active assistance, and collaboration of the plaintiff who had assured that sale would not be pre-empted by him. Therefore, pre-emption had been waived by him and he was estopped to sue are:- ' Plaintiff's relation to the vendor was not denied but consideration in the sale was stated to have been fixed in good faith and actually paid.
(1) On 4-11-1968, the trial Court settled issues for determination. Issues
(2) Has the plaintiff waived his right of pre-emption? OPD.
(3) Was a sum of Rs, 20,700 fixed in good or actually paid? OPD.
(4) Was the court-fee not made up within the period of limitation? If so, is the suit barred by time?
4. ()PD.
(5) Is the land in suit evacuee, if so, is the transaction in suit not preemptible? OPD.
(6) Relief.
5. ' As the burden of proof of all the issues was laid upon the defendants, they opened the case and gave their evidence first. Four D.Ws gave evidence for them and one of the defendants, namely, Allah Ditta stepped in the witness-box to record his own statement in support of the defence. In refutation, plaintiff himself made his statement as P.W.1 and was supported by Deed-Writer Muhammad Munir P.W.2, and Rehmat Ali P.W.3 who was marginal witness to the impugned sale- deed.
6. ' Upon exhaustive survey and indepth review of evidence adduced by the parties, the learned Administrative Civil Judge concluded that waiver was not established; upon admission, stated sale price was found to have been fixed in good faith and paid; required deficit court-fee was paid within the time extended by the Court; pre-emption suit was not barred by limitation; the land in suit was permanently settled upon the vendor and its sale by him was pre-emptible. Consequent upon the above conclusions, learned trial Court decreed the suit, conditional upon payment of the specified price by or before 9-9-1968, that failing pre-emption suit was deemed to have been dismissed. As said above, findings in the judgment of the trial Court were affirmed in appeal by learned District Judge. Against the agreed judgment, a further appeal was filed in this Court. It was admitted to hearing on 26-9-1968.
7. ' Mr. M. M. Bhatti in support of the appeal urged three points. (1) on record, pre-emptor was proved to have waived pre-emption and the Courts below found otherwise erroneously; (2) time for deposit of 1/5th of the probable money was extended without notice and sufficient cause; (3) in absence of an application in writing or oral, the trial Court ought not to have extended time for payment of deficit court-fee. It may straightaway be observed that two points urged and noted at serial Nos. 2 and 3 above are without substance and had no merit in them. In para 6 of the plaint, value for purposes of court-fee calculated at fifteen times of annual net profits accruing from the land in the year preceding the suit was assessed at Rs, 3,345 and a court-fee of Rs, 170 was paid upon the plaint. The plaint was placed before the trial Court on 18-9-1967. It found that payment of court-fee was deficient by Rs, 78.62 and directed its payment till 9-12-1967. There is no dispute that deficit court- fee was paid within this time. No serious exception to the order of the Court and payment of deficit court-fee in accordance therewith is available to the appellants. The Court had acted as was required of it by law. It was bound to determine the court-fee payable upon the plaint and afford an opportunity to pay it before taking any punitive action. Payment of deficit court-fee was not relatable to question of limitation at all. Period of limitation was to be reckoned when the plaint in the pre-emption suit was first filed in Court and that there is no doubt that when it was presented, it was well within time. Be that as it may, question of payment of deficit court-fee, and, its effect, on point of limitation arc a concluded chapter by the decision of the Supreme Court in Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and was no longer open for a debate. As for the extension of time for deposit of Zar-i-Panjum, suffice it to observe that it was neither agitated in the trial Court nor in appeal nor in the memorandum of second appeal filed in this Court. It was for the first time at the hearing today that it was sought to be introduced in the debate by urging that the Court ought to grant the permission for taking it, under Order XLI, rule 2, Civil P.C. Being a pure question of law. Mr. Ejaz Ahmad Ansari, learned counsel for the respondent vehemently opposed it. It was submitted by him that such a course is neither open to the appellants nor the Court. I think, Mr. Ansari is correct in opposing the move. Order for deposit of zar- i-panjum till 9-12-1967, as the record shows, was made on 18-9-1967. In terms of aforesaid order, whole of the day falling on 9th December, 1967 was included in it. At 12 noon on 9-12-1967, the plaintiff filed an application in the trial Court. It was stated therein that the National Bank Bahawalpur did not accept the deposit of Rs,4,140 on the ground that accounts had been closed. It was further stated that the plaintiff had the amount ready with him which the Court may itself get deposited in the bank. The trial Court placed the application on file, and, in the order-sheet of the day recorded the assertions made in the application and extended the time for deposit till 12-12- 1967 and directed the defendants to file written statement by the next date. In the order-sheet of the next date, it is noted that zar-i-panjum was deposited. Same day, the defendants submitted their written statement but raised no objection in regard to the alleged late deposit of zar-i- panjum in the written statement. There is no dispute that zar-i-panjum was deposited within the extended time but the time of its actual deposit, whether it was made on 12-12-1967 or prior thereto is not correctly ascertainable from the present records. Upon existing records, no serious fault could be ascribed to the plaintiff. He could legitimately wait till the last date and deposit the zar-i- panjum. He had the requisite amount of zar-i-panjum ready with him for deposit in the bank which refused to accept it on the ground that its accounts had been closed. It can be fairly said that this event must have taken place before 12 o'clock because the application was filed at 12 noon.
8. Therefore, if the trial Court instead of accepting the deposit from the plaintiff as was his prayer, extended the time for a short period, it committed no mistake. No express notice was required to be given to the appellants for this purpose. A decision of the Supreme Court in Malik Barkat Ali Dogar v.
9. Muhammad Shafi and others PLD 1990 SC 60 is in point and assists the respondent. Additionally, the point which was never agitated in the Courts below could not be allowed to be urged for the first time in course of hearing of second appeal for springing an unpleasant surprise upon the respondent who had not come prepared to meet it. It would be unfair to him. This much with regard to late deposit of zar-i-panjum was sufficient to repel the contention of the learned counsel for the appellant.
10. ' Having dealt with the points noted at serial Nos. 2 and 3, I shall advert to the crucial point which not only engaged the serious attention of learned Courts below but is also debated with vehemence at the hearing of second appeal, and, that is, about waiver of pre-emption by the plaintiff/pre-emptor. It was strenuously argued that the appellants gave strong and convincing evidence to establish waiver of his right by the plaintiff and sufficiently discharged the onus of proof that lay upon them and the Courts below upon erroneous premises disbelieved their evidence. It was further argued that the plaintiff was a party to the negotiations culminating in the sale and had also assured that he would not pre-empt and that there was sufficient material to support the plaintiff's active participation in the sale. Learned counsel read out the statements of witnesses in an attempt to convince that credibility of witnesses was wrongly judged in the Courts below. Support was harnessed from the cases reported in Sardar Muhammad v. Khuda Bakhsh and another AIR 1935 Lahore 884, Mian Shah Nawaz Khan v. Allah Ditta, etc. 1982 CLC 1348, Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403, Anwar Baig and another v. Mst. Naziran Bibi and 8 others 1987 CLC 1855 and Gulzar Ahmad v. Allah Wasaya 1988 SCMR 1407.
11. ' In refutation of the contention advanced by Mr. M. M. Bhatti, learned counsel for the appellants, Mr. Ejaz Ahmad Ansari, learned counsel for the respondent submitted that point of waiver was concluded by an agreed finding of fact and question of appreciation of evidence and decision as to the credibility of the witnesses is neither an error of law nor of procedure and cannot furnish a ground for second appeal. It was also argued that Court of second appeal is incompetent to entertain a question as to the soundness of a finding of fact. To support this statement, learned counsel referred to and heavily relied upon the cases in Abdul Majid v. Khalil Ahmed PLD 1955 F.C.
12. 38, Mumtaz and 3 others v. Mian Khan PLD 1973 Lahore 47, Mst. Zubaida Begum v. Mehraj Din 1979 CLC 109, Bashir Ahmed v. Hassan Din and others PLD 1983 Lahore 455, Imam and 7 others v. Saifur Rehman PLD 1984 SC 415 and Lal Din and 2 others v. Mst. Zeenat Bibi and 4 others 1987 CLC 587.
13. Lastly, it was argued that the evidence produced to establish waiver was improbable and unconvincing.
14. Having heard learned counsel from either side and review of the oral evidence led at the trial on point of waiver, I am sufficiently convinced that it was properly concluded by an agreed finding of fact. In arriving at the finding on absence of waiver, Courts below made a thoughtful and searching, examination of the evidence and in that process disbelieved the statements of witnesses produced by the appellants for sound and cogent reasons with which I fully agree.
15. Sections 100 and 101 read together prohibit second appeal on question of fact unless in the process of arriving at a finding of fact, the Court is shown to have committed an error of law or substantial error of procedure. A decision as to the credibility of the witnesses is neither an error of law nor of procedure and will not be interfered with in second appeal unless the witnesses are disbelieved on grounds which are opposed to law. In S.K. Wodeyar v. Ganapati Madhuling Dixit and others AIR 1935 Bombay 371, it was observed:-- "The question as to what witnesses should be believed or what witnesses should be disbelieved is entirely a question of appreciation of evidence within the jurisdiction of the Court before whom the witnesses were examined and by whom they were seen, and in this case on this point both the Courts have held that the evidence led on behalf of the plaintiffs was far more trustworthy than that led on behalf of the defendant."
16. ' Thereafter, referring to the observations of the subordinate Judge and quoting an extract from his judgment, the Court proceeded to observe:-- "This finding was vehemently attacked but in the end the counsel had to admit that it is a matter of appreciation of evidence, and it was not open to him to assail it in second appeal."
17. ' In Ajodhya Prasad Dube v. Mahabir and others AIR 1935 Allahabad 293, side note be reads:-- "Appraisement of witnesses is final and binding in second appeal."
18. ' In Misri Lal Nayak v. Mt. Surji and others AIR (37) 1950 Privy Council 28, side note B reads:-- "Appreciation of evidence--Lower Courts rejecting evidence of certain witness as unreliable--High Court in second appeal accepting such evidence exceeds its powers under S.100."
19. ' In Sadh v. Panu and another AIR (38) 1951 Himachal Pradesh 49, it was ruled that "there is no second appeal against weight of evidence". In Noor Muhammad v. Piru Bhai and another AIR 1958 Rajasthan 280, it was observed:-- "So far as belief or non-belief of the evidence is concerned, the first appellate Court was the final judge of it."
20. Question of waiver essentially turned on appreciation of oral evidence and its credibility. Both the tasks had already been admirably performed by the Courts below. There is hardly a ground for re- appraisement of oral evidence for a third time to find fault with concurrently concluded finding of fact. There is no error in reading of the record. On payment of consideration by the respondent and its onward transfer to the vendor, evidence add-uced conflicted with the stance taken in the written statement. If all that was stated later in the evidence was a true version of events, it would have been much easier for the appellants to obtain something in writing from the respondent to sufficiently bind him to the sale and to establish forbearance from asserting pre-emption subsequently. Waiver, as is often observed, is an intentional relinquishment of a known right by positive act, conduct or omission indicating an inference of abandonment/relinquishment/acquiescence. Respondent denied that he was a party to the sale or that he knew of it or was present at negotiations culminating in the sale, execution or registration of the sale-deed. On his side, he gave evidence to support it also. Therefore, upon oral statements of few witnesses whose credibility was not above board, waiver could not be held proved. In the very nature of things, such a plea requires strong and convincing evidence for its proof. That evidence is wanting in the present case. Having regard to the evidence, I am not satisfied that the appellants had succeeded, in discharging the onus of proof which lay upon them to establish waiver of right of pre-emption by the respondent. Second appeal is devoid of merits. It is dismissed with costs.