' MUHAMMAD AFZAL LONE, J.--- In this case on the move of the vendee in a pre-emption suit, leave to appeal was granted to examine, whether the concurrent findings of fact as to estoppel and waiver recorded by the two learned Courts below could and should have been set aside in exercise of the revisional jurisdiction of the High Court.
2. The plea of waiver reflected by issue No,1 raised by the appellant in the written statement is rested on the contention that the plaintiff-respondent actively participated in the sale transaction and thus by his acts and conduct relinquished his right of pre-emption. The learned trial Court referred to the admission made by Muhammad Yar P.W.2, as to the presence of the respondent when the transaction of sale took place and drew a presumption against him that he being the son of the vendee was present only to assist his father respecting the sale. It is in the statement of this witness that the respondent protested against the sale, but the learned trial Court brushed aside the same with the observation that this assertion did not find corroboration from the statement of the respondent and was not also suggested to the appellant's witness. The fact that despite knowledge of sale, the suit was brought by the respondent at the end of the period of limitation, also weighed with the Court. It was maintained that the conduct of the respondent was demonstrative of waiver of his right to pre-empt the sale. In view of these finding issue No,1 was answered against the respondent and his suit was dismissed. In appeal filed by him, challenging the dismissal of the suit, the learned District Judge in upholding the trial Court's decision on the question of waiver, laid emphasis on the presence of the respondent at the time of the bargain, on the strength of testimony of Shamsuddin D.W.1, Ahmad Bux D.W.2 and Rahim Bakhsh D.W. The latter is the son and special attorney of the appellant. The learned Appellate Court discarded Muhammad Yar's statement to the effect that the respondent lived separate from his father. In, this context, the respondent's stand in reply to a question put to him during cross-examination was that he lived with his father before a dispute arose between them over the sale, but his deposition was discredited by the learned First Appellate Court for the reason that he failed to state that in which house of the village he was living separately.
3. The unsuccessful pre-emptor then invoked the revisional jurisdiction of the High Court. After thorough examination of the evidence of the parties, the Court came to the conclusion that there was no evidence to show that the respondent actively participated in the transaction; and that his presence as a silent spectator, did not preclude him from filing the suit for enforcement of his right of pre-emption. The learned Single Judge relied upon Kidar Nath and others v. Bhag Singh and others AIR 1937 Lah. 504 and Baqri and others v. Salehon and others PLD 1972 SC 133. His analysis of the evidence on record is to be found in para. 3 of the impugned judgment, which in so far as relevant, is reproduced below:-- "The question whether the plaintiff had waived his right to bring the suit is primarily a question of fact which has apparently been decided against the plaintiff by both the Courts, and in the ordinary circumstances a revision would not lie. But the position in the instant case is different.
Reliance was made on the statement of Shams-udDin (D.W.1), Ahmad Bakhsh (D.W.2) and Rahim Bakhsh (D.W.4) and it was held that the appellant who had brought about the bargain obviously had the knowledge of the sale, and was thus debarred to file the suit. This finding, as is apparent from the record, was based on clear misreading of evidence. D.W.2 Ahmad Bakhsh stated that the sale was made at the persuasion of the plaintiff. Although Shams-udDin (D.W.1) stated that the plaintiff-petitioner was present at the time of the bargain, but he categorically denied that he had taken any active part in the sale. He deposed that the sale was made by the vendor himself and nobody persuaded him to do so. Ahmad Bakhsh was most unreliable because he had been working as a tenant under the vendee, and was an interested witness. D.W.4 Rahim Bakhsh being the son and attorney of the vendee could not be trusted. There was thus no cogent evidence showing that the plaintiff-pre-emptor had taken active part in the bargain."
4. It is well-accepted that revisional jurisdiction is primarily meant for correction of errors in the orders made and proceedings conducted by the subordinate Courts, and a finding of fact is not open to revision unless it is shown to be not based on any evidence or suffering from non-reading or misreading of material evidence. In this connection, reference may be made to Haji Ilahi Bakhsh v. Noor Muhammad and others PLD 1985 SC 41 and Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568. The finding on the question of waiver is a finding of fact. The High Court chose to interfere with the concurrent finding of the first two Courts on this point, on the ground that it was vitiated by misreading of evidence. We have examined the evidence on the record to adjudge the reasons given by the High Court in reversing the finding of fact. We find that while appearing as his own witness, the respondent categorically denied the suggestion that he got the land sold on account of his necessity. His this assertion finds sufficient support from the statement of Shams-ud-Din D.W.1 that Munshi Hamad Ali vendor himself struck the bargain of sale and no one was instrumental in sale of the land by him. The deposition of this witness falsifies the appellants' other evidence comprising the statement of his son and attorney namely Rahim Bakhsh and Ahmad Bux D.W.1 that the respondent himself got the sale made by his father. It is clear to us, that the High Court analysed the evidence correctly and was not wrong in holding that the finding of the first two Courts regarding participation of the respondent in the transaction, was the result of misreading of evidence. It is correct that the respondent's presence at the time of bargain is borne out from the evidence of both the sides, but that by itself is not suggestive of his participation in the transaction, to denude him on the ground of waiver of his legal right to pre-empt the sale. Waiver is an intentional relinquishment of known right and unless there is cogent evidence reflecting the respondent's conduct clearly indicative of abandonment of his right he cannot be said to have deliberately foregone his such right. In Muhammad Bakhsh v. Hassan Bakhsh and others 7 PR 1912 the presence of plaintiff at the time when the bargain was struck, was not found enough to draw an inference of acquiescence in sale. In Baqri's case after exhaustive review of the case-law, on the question of waiver, the principles summed up by this Court are:- "(i) Right of pre-emption arises on sale of the property in question. This is the general law.
(ii) 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 preemption as envisaged in section 19 of the said Act.
(iii) 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 pre-emption."
' Estoppel is the foundation of waiver and mere omission to assert a right does not constitute waiver. We do not think that upon the test laid down in Baqri's case, there is enough material on the file to warrant a conclusion that the respondent waived his right and was not interested to purchase the property.
5. On behalf of the appellant reliance was heavily placed on the following observations appearing in Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403:- "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 on 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 pre-emptor is genuinely too 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 forward 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 in many cases is 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."
' It is strenuously argued that the respondent is the son of the vendor and both of them resided under the same roof and were in league with one another. According to the appellant's learned counsel, the conduct of the respondent clearly smacked of mala fide which fully called for dismissal of the suit on the ground of waiver. It is to be recalled that the respondent's explanation as to the abandonment of his residence with his father after differences had arisen between the two, was not accepted by the learned District Judge, for the reason that in his statement he failed to particularize his residence in the village elsewhere. It appears to us that the learned District Judge proceeded wholly on incorrect basis. He omitted to notice that it was in the course of cross- examination that in reply to a question put to him, the respondent spoke of his differences with his father. He was not cross-examined further regarding his residence and was not required to volunteer a statement disclosing the new place of his residence. In Naseer Ahmad's case before the High Court it was factually established that the land was offered to the preemptor by the vendor before its sale to the vendee-defendant but he refused to purchase it. The High Court followed the dictum laid down in Baqri's case and maintained that the evidence produced by the defendant proved a positive act of relinquishment of his right by the plaintiff. Before this Court, in that case, in order to assail the finding on the question of waiver it was argued that the right of pre- emption could accrue to the plaintiff only after the sale of the land by the vendor, and thus he could not be said to have waived it by his refusal to purchase the property before its actual sale to the defendant. This contention was, however, repelled as Baqri's case unequivocally provides that the right of pre-emption can be waived even before the sale, by express refusal to purchase the property or by conduct reflecting clearly that the plaintiff was not interested in its purchase. It was in the course of that judgment that observations, commenting upon what usually happens in pre- emption cases, were recorded. We may say with respect that despite the generality of the expression, not the whole law, on the subject of waiver was intended to be enunciated thereby. As stated earlier, waiver being a question of fact has got to be decided on proof of such fact by the evidence in each case. Relinquishment. Of right is not to be inferred readily and there should be positive evidence to induce the Court to hold that the respondent intentionally wanted to forego his right. In Kidar Nath's case, waiver was ought to be proved by the evidence led by the vendee showing that the plaintiff actively negotiated the sale; that he sold bricks used for construction of a well in the land in dispute; and watched construction of the building therein without any demur.
The Division Bench of the High Court, after examining the evidence, expressed the view that:-- "To deprive a person of any legal right that he possesses, there must be clear and cogent evidence on the record justifying that course and the mere oral statements of a few witnesses deposing to certain circumstances from which it may be possible to infer that the prospective pre-emptor had knowledge of the sale, would not be enough to prove that he had positively relinquished the enforcement of his right."
' The quality of evidence before us is not different from the one which the learned Judges of the High Court had to deal with.
' For the foregoing reasons, we have no hesitation in holding that the appellant failed to prove waiver. The first two Courts misdirected themselves in returning a verdict in his favour and the High Court justifiably decreed the suit. We would, therefore, dismiss this appeal, but leave the parties to bear their own costs.