' MIAN NAZIR AKHTAR, J.--This appeal arises out of a suit for possession through pre-emption filed by Muhammad Din respondent on 23-7-1969 in the Court of the Civil Judge, Narowal to pre-empt the land measuring 19 Kanals 2 Marlas situated in village Sankatrah, Tehsil Narowal, District Sialkot.
The land was sold by Muhammad Shafi in favour of the appellants through a sale deed dated 19- 8-1968, registered on 4-10-1968 for a sum of Rs,8,000. The pre-emptive right was claimed on account of being collateral of the vendor, co-sharer in the Khata and owner in the estate. It may be mentioned that Muhammad Din plaintiff is the first cousin of Muhammad Shafi vendor.
2. The suit was resisted by the appellants and following issues were framed on the pleadings of the parties:-
(1) Is the suit not properly valued for purposes of Court fee? OPD
(2) Is the plaintiff estopped by his conduct to bring this suit? OPD
(3) Has plaintiff wavied his right of pre-emption? OPD
(4) Is the suit not maintainable on account of preliminary objection No,3 of written statement? OPD
(5) Has the plaintiff superior pre-emptive right as against the vendee/defendant?OPD
(6) Were Rs,8,000.00 paid or fixed in good faith as the sale price of the suit land? OPD
(7) On non proof of the above issue, what was the market value of the suit land at the time of sale in dispute? OPP
(8) Relief.
' The case was fixed for defendants'/appellants' evidence on 4-1-1971, who were not present in the Court. Their evidence was ordered to be closed under Order XVII, rule 3 of the C P C. The Court heard arguments of the plaintiff/respondent and adjourned the case for 5-1-1971 for orders. The suit was dismissed by the Court vide judgment and decree dated 5-1-1971. The respondent filed an appeal which was dismissed for non-prosecution on 8-12-1971. On 27-6-1972 the respondent filed an application for restoration of the appeal which was rejected vide order dated 30-6-1972. The said order was challenged by the respondent through F A O No,188 of 1972 which was accepted by this Court on 24-10-1984 and the case remanded for a fresh decision on merits. The appeal was accordingly restored by the appellate Court vide order dated 6-3-1985 and allowed on merits by the learned District Judge, Sialkot vide judgment and decree dated 14-4-1985. Hence this appeal.
3. The learned counsel for the appellants urged that the appellate Court committed an error of law in reversing the findings of the trial Court on issue No,3 pertaining to waiver. He pointed out that the plaintiff respondent was present on the occasions of bargain, writing of the sale-deed and registration of the sale-deed but never objected to it. This, according to the learned counsel, was sufficient to show that he had waived his right. He also urged that the appellants' evidence was wrongly closed under Order XVII Rule 3 of the C.P.C. On 4-1-1971, which was not a date of hearing. At any rate, it was not the adjourned date fixed at the instance of the appellants. He placed reliance on Bhagat Ram v. Raghbar Dial and others (AIR 1925 Lahore 57), Muhammad v. Raz Gul (PLD 1972 Peshawar 146) and Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403). On the. Other hand the learned counsel for the respondent contended that the burden of proving issue No3, pertaining to waiver, was on the appellants/defendants. They did not enter into the witness box as their evidence was closed under Order XVII Rule 3 of the C.P.C. Therefore, the appellate Court had rightly reversed the findings on the said issue. He also pointed out that the order passed on 4-1-1971 closing evidence of the appellants was never challenged by them. He further urged that the application for additional evidence submitted by the appellants was rightly rejected by the appellate Court. Out of a large number of judgments cited by the learned counsel for the respondent, I would refer to a few relevant cases which are: Sakhi Muhammad and another v. Muhammad Yar and others (1985 MLD 1481), Muhammad Din v. Muhammad Aslam (PLD 1954 Lahore 541) and Muhammad Saleh v.
Muhammad Shall (1982 SCMR 33). On the basis of these cases, he urged that mere presence of the plaintiff at the time of registration of bargain was not sufficient to prove waiver of his right.
4. I have considered the contentions raised by the learned counsel for the parties and perused the relevant material on the record. On 12-9-1970 the trial Court had recorded the affirmative evidence of the plaintiff. The appellants' evidence was not available. The reason stated by the appellants' counsel was that another case between the same parties was pending before the Court in which evidence was to be recorded on the same date i,e. 12-9-1970. Hence due to misunderstanding appellants/defendants could not produce evidence in the case. Treating it to be a good reason, the Court granted adjournemnt to the appellants on payment of Rs,12 as costs. It was also noted in the order that no further adjournment would be granted to the appellants for production of evidence. Keeping in view the order dated 12-9-1970 the trial Court was justified to close the appellants' evidence under Order XVII, Rule 3 of the C.P.C. This order was not challenged by the appellants because the suit was dismissed by the trial Court and respondent's appeal was also dismissed for non-prosecution. I allowed the learned counsel for the appellants to challenge the correctness of the said order but he has not been able to persuade me to agree with his view point that the said order was erroneous in law. The appellants had obtained adjournment for producing evidence on payment of Rs,12 as costs. It was also ordered in their presence that last opportunity was being granted to them for the said purpose. This position was accepted by the appellants.
Thereafter on their failure to appear in the Court and produce evidence the trial Court was justified in closing their evidence under Order XVII, Rule 3, of the C.P.C. As regards the question of waiver I find that the burden to prove the said issue was placed on the appellants. No evidence was produced by them to discharge the onus placed on them because their evidence was closed under Order XVII Rule 3, of the C.P.C. Hence, in the normal course, the finding on this issue must have been recorded in favour of the plaintiff/respondent. As regards the presence of the respondent/plaintiff at the time of the bargain, writing of the sale deed, and registration of the sale deed, suffice it to say that mere presence of the respondent/plaintiff was not sufficient to give rise to the inference that he had waived his right of pre-emption. It appears that in his anxiety to establish that a sum of Rs,5,000 was returned by the vendees to the vendor in his presence, he claimed (perhaps wrongly) to be present on the above referred three occasions. He had also stated that he had filed another pre-emption suit against the vendees/appellants in respect of sale of some other land from the same Khata. In view of the previous litigation, the vendor and vendees were not expected to enter into a bargain and scribe the sale deed in the presence of the plaintiff. Even if his statement is accepted to be true as a whole, this would only show that he had earlier asserted his right of pre-emption and had been keenly watching the subsequent transaction so that he may institute a pre-emption suit on payment of , the price actually paid by the vendees, well within the period of limitation. The sale deed was registered on 4-10-1968 and pre-emption suit was instituted on 23-7-1969. Hence the appellate Court rightly held that there was no waiver by conduct on the part of the respondent in the present case.
5. Now a reference may be made to the judgments relied upon by the learned counsel for the appellants. In Bhagat Ram's case finding of acquiescence was recorded against the plaintiff/pre- emptor for the reason that he had actually participated in settling the bargain, collecting money, counting it at the Sub-Registrar's office and effecting registration of the sale deed in favour of the vendee. The relevant portion is reproduced below:-- "It is quite clear that mere presence at the time of registration is not sufficient to prove acquiescence. But where, as here, we have the fact that father of the pre-emptor had taken an active part in the negotiations, that the pre-emptor himself assisted in collecting the money and was not merely a silent spectator of the actual registration, but took an active part there and where he has delayed as here in bringing his suit up to the last possible moment, we are of opinion that all these facts taken together point conclusively to such acquiescence throughout as must have influenced the vendee in concluding the transaction."
' In Muhammad's case two brothers had instituted a suit for pre-emption out of whom one was found to have waived his right, who subsequently withdrew from the suit by filing an application under Order XXXIII, rule 1. Of the C.P.C., it was held that the other brother was not disentitled to sue for pre-emption. In this background, it was emphasised that waiver could be proved if a person had committed any positive act in the completion of the sale deed. This of course is far from holding that a person would be deemed to have waived, his right if he is merely present at the time of bargain or registration of the sale deed. In Naseer Ahmed's case the evidence clearly established that Haider, the vendor, had first offered the land for sale to Naseer Ahmad, petitioner for Rs,16,000 through Punchait but the latter had refused to buy it. In this context it was held that the right of pre-emption being piratory right, where a person remained associated with the sale- proceedings or refrained from bidding at auction of the disputed property and plugged in his claim to purchase a certain piece of land or property after another person had purchased it, he did not deserve relief through Court of law. In the present case as observed above the plaintiff/respondent had claimed to be present at the time of bargain, writing of the sale deed and registration of sale deed but there is nothing to show that he had actually assisted the vendee either to strike the bargain with the vendor or thereafter to complete the sale transaction. There is nothing to show that the land was ever offered to the respondent at the price embodied in the sale transaction.
Moreover, the plaintiff had claimed that he had earlier instituted a suit against the vendees/respondents to pre-empt sale of another piece of land from the same Khata out of which the sale in question was made. This fact persuades me to believe that in all probability, the respondent was not present at the time of bargain or registration of the sale deed because the vendees would have avoided his presence at all costs for fear of another suit against them.
5. In Sakhi Muhammad's case referred to by the learned counsel for the respondent the pre- emptor was present at the time of settlement of bargain and registration of sale deed and at the time of attestation of the sale deed. It was held that the said facts were not sufficient to prove that the pre-emptor had intentionally relinquished his right to pre-empt the sale. In Muhammad Din's case it was held that mere silence or non assertion of right in so far as it is compatible with an intention not to waive the right, can never amount to waiver. In Muhammad Saleh's case which had arisen out of a rent matter (under the provisions of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance) while dealing with the question of waiver it was emphasised that in cases of waiver there should be some clear and decisive act or conduct beyond mere silence. It was further held that mere inaction or allowing an opportunity to pass by does not necessarily amount to waiver and that omission to enforce one's legal right strictly cannot give rise to inference that the right had been abandoned. Thus I am of the considered opinion that in the peculiar facts of the present case in which burden of the issue pertaining to waiver was never discharged by C the appellants and the respondent's evidence did not establish conscious.
6. This order will dispose of a preliminary objection raised by learned counsel abandonment of right of pre-emption, the appellate Court was fully justified in reversing the findings of the trial Court on the issue pertaining to waiver.
7. In view of the above discussion I find no merit in this appeal which is dismissed leaving the parties to bear their own costs.