' The suit property consisting of land measuring 25 kanals out of survey Nos. 532, 457, 453, 327, 439/1,326, 423, 558, 353, 419, 441, 408, 401, 470 & 202, 522, 592, 400 and share of the vendor in the built-up property, situate in village Bathara, Tchsil Bagh, was alienated by Mst. Nishada Begum through a registered sale-deed executed on September, 18 and registered on September 19, 1960, for a sum of Rs, 1,500 in favour of Sardar Sajawal Khan. Muhammad Rashid Khan, son of the vendor pre-empted the sale of the suit propel y by virtue of his relationship with the vendor. In addition to claim for possession of the suit land by virtue of prior right of purchase, the plaintiff-appellant alleged that the alienation of the suit property was illegal for its being violative of the provisions of the Land Reforms Act, 1960. It was further averred that the actual price of the suit property was Rs, 500, whereas the vendee manoeuvred entry of Rs, 1,500 as the sale price in the sale-deed and its payment, at the time of registration of the sale-deed. The claim of the plaintiff was repudiated by the vendee. The vendee further alleged waiver against the pre-emptor. It was averred that the pre- emptor was a consenting party to the alienation of the suit land and in support of his consent, the pre-emptor signed the sale-deed and put his thumb-impression as a marginal witness.
2. - The trial Court framed issues relating to actual price of the suit land and waiver. These issues were found proved, as such the suit was dismissed on January 28, 1965. On appeal by the pre- emptor before the District Judge, the order of Sub-Judge was set aside and the case was remanded after framing 2 additional issues relating to the return of part of the sale price in the sum of Rs, 1,000 and legal character of the sale on account of its being violative of provisions of Land Reforms Act. This order was passed on May 13, 1967. The vendee feeling aggrieved of the aforesaid order, preferred appeal before this Court. The learned Acting Chief Justice of the time partly rejected the appeal on May 7, 1968 and directed that the trial Court shall record the evidence on additional issues and submit its finding to the District Judge. The District Judge was directed to decide the case afresh on all issues. On the second round before the District Judge, it was held that the sale being violative of the provisions of Land Reforms Act, was invalid, as such the suit for pre- emption was not maintainable. This order was passed on December 11, 1973. Both the parties feeling aggrieved of the aforesaid order, preferred counter-appeals before this Court.
3. Muhammad Rashid Khan, plaintiff-appellant preferred his appeal primarily against the finding of the District Judge, whereby it was shown that the sale was invalid for its being violative of the provisions of the Land Reforms Act. Today, an application was moved by the appellant wherein it was expressly maintained that the objection whereby sale was defective for its being violative of the provisions of Land Reforms Act, was not pressed in support of the claim of the plaintiff. The learned Counsel for the appellant emphasised that the aforesaid objection may be treated to have been withdrawn. In presence of the aforesaid position, the objection relating to legal character of the alienation by virtue of its being violative of the provisions of the Land Reforms Act, does not warrant detailed observations of this Court. Nevertheless, it is noticed that the vendor alienated her entire estate in favour of the vendee through a registered sale-deed. It appears that at the time of execution of the sale-deed, she was assured by the Revenue Officer that her share in the estate left by her father was to the tune of 25 kanals of land. In presence of the aforesaid impression, she bona fide transferred her entire share in the estate. In the circumstances, it has to be accepted that a few marlas of land later on found in excess of the property alienated by the vendor, would not suggest that the parties were alive to the aforesaid factual position of the total share of the vendor. Be that as it may, the fact remains that the issue is not pressed into service. Therefore, it is decided against the plaintiff-appellant.
4. The price of the property in dispute is not disputed by the parties. Therefore, the fmdings of the subordinate Courts on that issue remain intact.
5. The crucial issue raised during the arguments of the learned Counsel for the parties confined to the waiver ascribed to the plaintiff-appellant. The term "waiver" has been construed as: "Conscious renunciation or intentional relinquishment of a known right." It was defined in Ali Haider Khan's case PLD 1983 SC (AJ&K) 5 as:-- "Waiver means, to abandon or relinquish of a known vested right by express declaration or by conduct."
' Its meaning and scope was construed in Shamas Din's case PLD 1986 AJK 108. Sardar Sajawal Khan, vendee in para 4 of his written statement, averred that the plaintiff expressed his consent to alienation of the land in favour of the vendee by refusing to purchase the same. In affirmation of his waiver, he participated in execution of the sale-deed by signing the deed as a marginal witness. It was, therefore, alleged that on account of waiver on the part of the pre-emptor, the suit was not maintainable. In support of the aforesaid issue, Sardar Sajawal Khan appeared as a witness and produced Munshi Feroze Din, petition-writer, scribe of the sale-deed, Manna Khan and Munshi Ahmedullah Khan, marginal witnesses of the deed. The trial Court accepted the contention of the vendee and decided the issue against the plaintiff. On appeal, the learned District Judge, on perusal of evidence, however, arrived at a different conclusion. On pointing out contradictory nature of testimony of the aforesaid witnesses, it was held that the vendee failed to prove waiver to defeat the suit of the pre-emptor.
6. The arguments were heard in this case by my predecessor when it was deemed expedient to record additional evidence by summoning the Handwriting Expert to verify the correctness of purported thumb-impression of Muhammad Rashid, affixed on the sale-deed. Thus, the thumb- impression of the pre-emptor was secured and the same was referred to Finger-print Bureau, Lahore. The report was received by the Court before March, 1975. Mr. Muhammad Yaqub, D.S.P., I/C Finger-print Bureau, Lahore appeared as a witness in support of the aforesaid report. His statement was recorded on July 21, 1975. At the request of Muhammad Rashid, Mr. Zaka A. Malik, another Handwriting and Finger-print Expert was summoned as a witness and his statement was recorded on June 20, 1976.
7. In the case in hand, waiver was alleged against the pre-emptor on the basis of attestation of sale-deed by him in addition to refusal, at the time of execution of the sale-deed, to purchase the suit land. His refusal to purchase the suit land ascribed to the pre-emptor was sought to be proved by oral evidence of scribe of the sale-deed, the vendee and other 2 marginal witnesses. In order to determine as to whether signing of the sale-deed as a marginal witness tantamounts to waiver, reference has to be made to the authorities relied upon by the learned Counsel for the pre-emptor.
In Mustaqim's case PLD 1962 Pesh. 14, the pre-emptor, an agent of his nephew, executed the sale- deed alongwith other vendors. The Registration Officer refused to register the sale-deed as the power of attorney was defective. The sale-deed was returned to the parties on which transaction of sale was modified by excluding the share of the nephew of the preemptor and deleting the name of the pre-emptor as representative of the vendor. The learned Judges overruled the objection of waiver as, in their view, mere acting of the pre-emptor as representative of one of the vendors whose share was subsequently exlcuded from the sale-deed, was not sufficient to constitute waiver against him. In Luqman's case PLD 1967 Pesh. 166, objection of waiver was turned down as attestation of deed by pre-emptor by itself did not estop him from exercising his right of prior purchase. It was elaborated that attestation of deed did not convey directly or by implication any knowledge of the contents of the document to establish consent of the pre-emptor to the transaction of sale. In Baqri and 4 others' case PLD 1972 SC 133, the pre-emptor was confronted with the defence of waiver ascribed to him by virtue of his presence at the time of auction of subject of dispute. It was alleged that the pre-emptor participated in the auction. He failed to purchase the property in auction for not giving the highest bid. Thus, he was estopped from asserting his right of prior purchase. Mr. Justice Salahuddin, the learned Judge, on going through the relevant authorities on the point, overruled the objection of waiver by allowing decree in favour of the pre- emptor. The relevant observation is reproduced:- "To sum up the decisions lay down the following principles:--
(i) Right of pre-emption arises on sale of the property in question. This is the general law.
' Right of pre-emption, however, can be waived before the actual sale either by express refusal to purchase the property or by a clear conduct on the part of the plaintiff, showing that he is not interested in the purchase of the property.
' This is consistent with the principle of foreclosure of right of pre-emption as envisaged in section 19 of the said Act.
' Mere participation in the auction for the sale of the property or failure to outbid the purchaser cannot be regarded as a waiver of the right of preemption."
' Applying the principles laid down in the cases discussed above, it is evident that there was no waiver in the present case. Respondent No,1 never refused to purchase the property at the price it was sold nor was there any act on his part which could reasonably be construed to constitute waiver of his right of pre-emption. On the contrary, as we have noticed already, his participation in the two auctions and his bid of Rs, 28,000 are clear indications of his intention to purchase the property."
' In Ghulam Muhammad's case 1980 CLC 2063, it was observed that mere attestation of sale-deed by a person having superior right of pre-emption does not amount to waiver. However, if the person has taken part in the transaction and has done some other overt act in relation thereto, pre-emptor shall be deemed to have waived his right. Iu Mian Shah Nawaz Khan's case 1982 CLC 1348, the objection of waiver was upheld in consideration of the conduct of the pre-emptor as he was found present during the transaction of the sale made by his father. In Naseer Ahmed's case PLD 1984 SC 403, an objection of waiver alleged by the vendee was upheld. In that case, the vendee resisted the suit, among others, on the ground of waiver, alleging thereby that the pre-emptor was offered the land for sale through `Panchayat', but he refused to buy it. The learned Judge, Mr. Justice Aslam Riaz Hussain, refused to grant relief and observed as:-- "It is universally accepted that pre-emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the pre-emptors 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 time. 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 pre-emption 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 time 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 time 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 pre- emption, which cannot but lead one to assume that there was collusion between the two. We feel that such suits are very often mala fide 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 foward 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 time 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."
8. In this case, the evidence produced in support of waiver is documentary as well as oral. The documentary evidence pertains to signing and putting thumb impression of the pre-emptor as a marginal witness on the sale-deed. It appears that much effort was made to establish the genuineness of the purported thumb-impression of the pre-emptor on the sale-deed. Thus, Finger and Hand-witing Experts, Mr. Muhammad Yaqub, D.S.P. And Mr. Zaka A. Malik were produced.
Muhammad Yaqub, Finger-print Bureau, Lahore testified that the questioned thumb-impression was identical to the admitted thumb impression. His evidence was recorded on July 21, 1975, in this Court. He was subjected to lengthy cross-examination. The conclusion of the expert is found positive and it has to be relied as such. Mr. Zaka A. Malik who was summoned as a witness at the instance of Muhammad Rashid, appeared in the Court on June 20, 1976. In his opinion, the questioned thumb impression was superimposed and it provided no sufficient characteristic to form a conclusive opinion. The Experts' evidence, therefore, leads to the conclusion that the questioned thumb impression was that of the preemptor. In addition to that, the sale-deed bears the signatures of Muhammad Rashid Khan. His signatures, in addition to the sale-deed, also appear on the power of attorney executed by him in favour of Gulab Khan, his attorney who has instituted the suit on his behalf. These signatures were not put to identification for reasons unknown. The questioned signatures of Muhammad Rashid when compared with the admitted signatures appearing on the power of attorney, it lends sufficient support that the questioned signatures on the sale-deed are that of Muhammad Rashid. This aspect of the proposition confirms to the fact that the sale-deed was signed by the pre-emptor as a marginal witness who also put his thumb impression at the time of its execution.
9. Next, we have to see as to whether mere signing of the deed or putting thumb-impression on it as a marginal witness, would deprive the pre-emptor of his asserting prior right of purchase or not.
The general consensus is that mere presence at the time of transaction of sale or signing of the document as a marginal witness, would not suffice to deprive the pre-emptor of asserting his right of prior purchase. It must show some overt act, express or implied, of the pre-emptor convincingly indicating his consent to the transaction or refusal to purchase the property at the relevant time, on payment of ostensible price. On this premises, in the present case, we have to advert to oral evidence led by the vendee-defendant in support of purported waiver ascribed to the pre-emptor.
10. It is relevant, for convenience of the settlement of the proposition, to state here that the sale- deed was executed at the residence of the vendee. Munshi Feroze Din, petition-writer, scribe of the sale-deed, stated that the vendee enquired from the pre-emptor as to whether he was a consenting party to the sale of land by his mother. The pre-emptor expressed his willingness to the alienation of the land and singed the sale-deed as a marginal witness. It was further explained that the sale deed was read over to the parties and the witnesses present at the time. In answer to a question in cross-examination, the witness stated that Mst. Nishada Begum, vendor did not ask the pre-emptor about his consent and willingness to the alienation of the land. Manna Khan, husband of vendor and step-father of the pre- emptor, testified that the pre-emptor refused to purchase the land and that the sale; deed was executed in his presence. He further said that the vendor offered the land to the pre-emptor on lesser price but he refused to purchase the same and allowed her to alienate it according to her choice. In endorsement of his consent, he signed the sale-deed and also put his thumb-impression to affirm his consent to the alienation. Munshi Feroze Din, another marginal witness of the deed, also corroborated Manna Khan and Sardar Sajawal Khan, vendee. All the aforesaid witnesses were subjected to cross-examination. There was no contradiction in the testimony of Manna Khan, Munshi Ahmedullah and Sardar Saj awal Khan, with respect to the consent of the pre-emptor to the alienation of land to the, vendee. However, Munshi Feroze Din, in answer to a question in cross-exatmination, deposed that he asked the preemptor as to whether he was willing in alienating the land by his mother to the vendee or not, or whether he wanted to purchase the land or not. No other witness asked the pre-emptor about his consent. This is the only variation in the oral evidence of the aforesaid witnesses. Munshi Ahmedullah was shown as an independent witness. He was resident of the locality. Likewise, Manna Khan was shown closely related to the pre-emptor for being his step-father, the second husband of his mother.
Munshi Feroze Din was also not shown an interested witness to withhold the truth of the matter.
' In rebuttal, Muhammad Raslhid, plaintiff appeared as a witness and produced Rahim Dad Khan. In his statement, Muhammad Rashid categorically denied his knowledge of the alienation of the suit land and signing or putting thumb impression on the sale-deed as a marginal witness. He was cross-examined on the question of waiver but he denied all the suggestions to that extent. Rahim Dad Khan, deposed that the sale was made without the knowledge and consent of the plaintiff. He further deposed that he visited the vendor, mother of the preemptor, and conveyed to her the message of the plaintiff that he wanted to purchase the land. He was not a witness of the transaction of sale. The evidence of Rahim Dad Khan was not corroborated by Muhammad Rashid in any manner. Thus, the statement of Muhammad Rashid) alone deserves consideration so as to believe whether he was a consenting party or not. Apart from the fact that he was an interested person in the result of the suit, his bare statement negating his participation in the transaction of sale and refusing to purchase the property, is insufficient so as to reject the oral testimoney of the witnesses produced by the vendee. It is interesting to note that Mst. Nishada Begum also appeared as a witness in the Court after framing of the a dditional issues. Her testimony was confined to the actual price of the land. She was produced by the pre-emptor. She observed silence on the conduct of the pre- emptor in refusing to purchase the land or giving his consent as well as signing or putting his thumb impression on the sale-deed as a marginal witness. The defendant vendee also avoided to cross-examine her on the aforesaid vital issue. In addition to the other witnesses of the transaction of sale, she was an important witness to unfold the truth. Unfortunately, we do not have any word from her mouth for or against the issue of waiver. Rest of the oral evidence led by the pre-emptor relates to other issues. Therefore, it does not deserve analysis and appreciation of the Court.
11. The aforesaid evidence obviously leads to the conclusion that the preemptor was a consenting party to the alienation of the suit land by his mother to the vendee-defendant.
12. The learned counsel for the pre-emptor referred to an unreported case of this Court titled "Muhammad Din v. Abdullah Joo" decided on June 16, 1962. In that case, the objection of waiver was raised but the suit was decreed as, in view of the learned Judges of this Court, the allegation of waiver was not proved. The relevant observation is reproduced:-- "Another point argued by the learned Counsel for the appellant is that in the written statement the vendee had alleged one set of facts that constitute waiver but in the evidence another set of facts had been set up to prove waiver. In the written statement it was pleaded that the plaintiff had taken active part in the negotiation of the sale between the vendor and the vendee and he gave consent to the sale and therefore, he waived his right. In the same terms issue No,4 was framed, but the evidence led on issue No, 4 by the vendee tried to prove that the suit land had been offered to the plaintiff and he had refused to purchase it. Implied waiver had been pleaded in the written statement but the evidence tried to prove an active waiver. High Courts are always reluctant to accept oral evidence with regard to waiver unless a very cogent and convincing case has been made out. In the present case before us one sort of waiver was pleaded but another sort of waiver was tried to be proved. We do not agree with the learned District Judge in his finding that the plaintiff had waived his right of prior purchase. We accordingly decide the issue No,4 against the defendant."
13. The aforesaid reasons lead to the conclusion that the plaintiff-preemptor was a consenting party to the alienation of the land, as such he was estopped from asserting his right of prior purchase. There is no force in the appeal of Muhammad Rashid Khan which is dismissed. The counter-appeal preferred by Sardar Sajawal Khan is accepted. The suit of the plaintiff-appellant is dismissed. No order as to costs.