1. ' This appeal by leave of the Court is the culmination of a pre-emption suit filed in the year 1960 by the appellant before us. The suit land was sold by the appellant's mother Mst. Nishada Begum (who had remarried) to Sardar Sajawal Khan through a registered sale-deed executed on September 18, 1960, for a sum of Rs,1,500. In the suit filed by the present appellant Muhammad Rasheed Khan, apart from seeking possession on the basis of right of prior purchase, the plaintiff also challenged the sale-deed on the ground that it was violative of the provisions of the Land Reforms Act, 1960.
2. The quantum of purchase price was also challenged asserting that the actual amount was Rs,500 and not Rs,1,500 as shown in the sale-deed. In the written statement the averments incorporated in the plaint were repudiated and it was also alleged that the plaintiff was a consenting party to the sale of the suit land and as a token of his consent he had signed the sale-deed as a marginal witness. The suit was dismissed mainly on the point of wavier on January 28, 1965, but an appeal taken to the District Judge succeeded and the case was remanded after framing of two additional issues which related to the purchase price and the alleged violation of the Land. Reforms Act. This order was challenged before the High Court which partly accepted the appeal and issued a direction to the trial Court to submit its findings to the High Court after recording the evidence. In the second round the District Judge held that the sale in question was in contravention of the Land Reforms Act and was thus invalid. It was concluded, therefore, that no sale had taken place and the suit for pre-emption was not maintainable. Due to this conclusion Muhammad Rashid Khan was also aggrieved and filed second appeal before the High Court. Sardar Sajawal Khan also appealed.
3. Muhammad Rashced Khan filed an application in the High Court and prayed that he did not want to press his objection that the sale was in violation of the Land Reforms Act. The learned Judge it the High Court who was seized of the case accepted the prayer by making an observation that this objection did not "warrant detailed observations of this Court". It was however also observed that in the sale-deed it was stated that the vendor was alienating her entire estate which was indicative of the fact that at the relevant time she had been told by the revenue officials that the total estate which had devolved upon her was 25 kanals of land. She acted on this information and stated in the sale-deed that she was alienating her entire estate comprising 25 kanals. In light of these facts the learned Judge in the High Court formed the view that if a few marlas of land was later on found to be part of her estate in addition to 25 kanals mentioned in the sale-deed it would not invalidate the sale-deed. It was further observed by the learned Judge that in any case since the issue was not pressed it was decided against the present appellant. This point has again been raised before me and will be disposed of at the proper stage.
4. ' The learned Judge in the High Court after going through the evidence of the parties as well as the case-law on the subject reached the conclusion that Muhammad Rasheed Khan, the plaintiff-pre- emptor, was a consenting party to the alienation of the land, as such he was stopped from asserting his right of prior purchase. Consequently, the suit filed by Muhammad Rashced Khan was dismissed. It may be observed that when the second appeal was filed in the High Court the learned Judge who was initially seized of the case formed the view .That recording of additional testimony would be in the interest of justice. Therefore, the High Court examined two finger print experts and their evidence also forms part of the evidence in the case!
5. ' As mentioned above the learned counsel for the appellant, Mr:A.D. Khan, raised the objection that the sale in question was in violation of the Land Reforms Act. This point was upheld by the learned District Judge but was subsequently given up before the High Court through a written application.
6. However, the learned Judge in the High Court, apart from observing that the point need not be resolved because it had been abandoned, also expressed the view that on merits also it did' not have force. The learned counsel for the appellant submitted before me that it is a question of law and can be raised for the first time in this Court by including it in the, petition for leave to appeal as well as in the concise statement which conditions have been fulfilled by the appellant.. The learned counsel relied on a judgment of this Court Raja Muhammad Niaz Khan v. AJ&K Government [PLD 1988 SC (AJ&K) 53], in which it was observed that it was a consistent view of this Court that a legal point could be raised for the first time before this Court. He also relied on Muhammad Ibrahim Khan v. Azad Government [PLD 1990 SC (AJ&K) 23]. There is no doubt that it is a consistent pram ice of this Court to allow pure questions of law to be raised for the first time and there is no doubt also that the question which is being now raised before us is a question of law because, A although certain facts are involved in it the fact is, clearly established from the evidence on the record that few marlas of land continued to be the ownership of Mst. Nishada Begum, the vendor in the case.
7. However, fact of the matter is that the point which is being raised before this Court is not a new point at all This point was raised before the Sub-Judge and subsequently before the District Judge.
8. In the appeal filed by Muhammad Rasheed Rashecd"Khann the High. Court he made an application that he wanted to abandon this point and thus, with the permission of the Court, abandoned it He now raises it again before me but no case-law has been cited on behalf of the appellant that this can be done. The learned District Judge held that in view of the violation of the Land Reforms Act there was no sale in the eve of law and therefore there was no question that the sale may be pre-empted by Muhammad Rasheed Khan, It is obvious that it was this situation which he wanted to avoid and that is why he abandoned this point. It is obvious that if this point is accepted he gains nothing and only the sale would be invalidated. He, therefore, took a chance that he might succeed in getting a decree of possession from the High. Court but having failed in his effort he has again taken a u-turn. In our view where with conscious application of mind in furtherance of the interests of a party a point is abandoned it cannot be raised again in this Court.
9. A Court of law deals with the rights and liabilities of the people who come before it for adjudication of their disputes. In my view this is a very serious business in which the game of hide and seek cannot be allowed. I am fortified in this view by a judgment of this Court reported as Aksar Ali v.
10. Fazal Karim 1982 CLC 1309, which lays down the rule that the point abandoned in the lower Courts cannot be re-agitated, as well as a judgment of the Supreme Court of Pakistan reported as Pakistan v. Mst. Fai7an 1983 SCMR 413 which is to the effect that a point specifically given .Up before the High Court cannot be raised in the Supreme Court.
11. ' The only other point involved in the present case is the question of waiver which has been decided against the appellant. The learned counsel for the appellant contended that attestation of a document itself does not operate as an estoppel. He cited Banga Chandra Dhur Biswas and another v. Jagat Kishore Achariya Chowdhuri and others [AIR 1916 PC 110], Pandurang. Krishnaji v. M.
12. Tukaram and others [AIR 1922 PC 20, Abdul Aiz and others v. Abdullah and others AIR 1925 Lah. 413], Mustaqim v. Shcr Bahadur [PLD 1962 Pesh. 14J and Luqman v. Allah Diwaya and others [PLD 1967 Pesh.
13. 1661. Out of these eases Peshawar High Court judgment in Mustaqim's case is not relevant because in that case the pre-emptor associated himself with the sale as a represenative of another person and not in his personal capacity. In these Circumstances it was held that due to the obvious distinction between representative capacity and personal capacity fin question of waiver arose.
14. The other cases are all tied up in a chain. The basic case is the Privy Council case of Banga Chandra Dhur Biswa s, which has been followed in the other cases mentioned above. In these cases it has been held that mere attestation does not prove that the signature of an executing party has been attached to a document in presence of a witness. It even does not involve the witnesses in any knowledge of the contents of the deed nor affects him with notice of its provisions By itself attestation would not create estoppel nor imply consent. However, it is an essential part of the principle that by evidence it can be proved that an attestion took place in circumstances which would C show that the witness did in fact know all the contents of the document. The follow passage from Pandurang Krishnaji's case is extracted below:- "....Before their Lordships consider the circumstances in which that attestation took place, they, think it is desirable to emphasize once: more that attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys; neither directly nor by implication any knowledge of the contents of the document, and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects. It is, of course, possible, as was pointed out by their Lordships in the case: f Banga Chandra Dhur Biswa s v. Jagat. Kishore Achariya Chowdhuri [AIR 1916 PC 110] that an attestation may take place in circumstances which would show that the witness did in fact know of the contents of the document but no such knowledge ought to be inferred from the mere fact of the attestation."
15. ' It may be observed that Pandurang Krishnaji's case was not a preemption case and the Judges were called upon to hold that by attesting a deed the witness relinquished for no consideration whatever aright which was of a great value. The earliest Privy Council case of Banga Chandra Dhur Biswa s was also not a pre-emption suit and involved disposition of property in respect of which estoppel was being pleaded. However, Abdul Aziz's case in which a learned Single Judge of the High Court followed Pangudrang Krishnaji's case was a pre-emption suit. However, the precise principle which was laid down was that the attestation of a deed did not by itself estop the person attesting it from denying that he knew its contents or that he consented to the transaction which' it effects. In Luqman's ease a Judge of the Peshawar High Court also followed this view and held that person who attests a deed can deny that he consented to transaction effected by deed. It may be noticed that the cases in which the proprietary right or share in a 'property is involved are a class which is distinct from the class in which the pre-emption suits fall. While in the first category of cases, a person who attests a document cannot be saddled with the intention that by becoming a witness he was surrendering his right because he may not be knowing the exact details of the transaction. However, if a person 'attests a sale he knows which property is being sold and also knows the fact as to who is the vendor and who is the vendee. If he is so closely related to the vendor as in the present case these facts cannot escape his attention. If he has any objection to the sale and he thinks that it is he to whom the property should be sold no reason comes to mind why he should attest the document. Be that as it may, I have no quarrel with the proposition that such a person may plead that he was not aware of the contents of the 'document. It follows that if he succeeds in proving it then there would neither be estoppel nor waiver. However, it is clear that if it is proved that he was aware of the contents and he associated himself with the completion of the sale he would be deemed to have waived his right. The Supreme Court of Pakistan has held in Baqri v. Salehon [PLD 1972 SC 133] and Naseer Ahmad v. Arshad Ahmad [PLD. 1984 S.C. 4031 that right of pre-emption can he waived by conduct before the actual sale lakes place.
16. ' The learned counsel for Sardar Sajawal Khan, Mr. Ghulam Mustafa Mughal, cited the case of Ghulam Muhammad y. Muhammad Bakhsh [1980 CLC 2063] in which a learned Judge of the Lahore High Court held that when it was proved from the evidence on record that the contents of the document were known to the pre-emptor who subsequently filed a suit this fact would work as an estoppel. In that case the pre-emptor had signed the sale-deed as an attesting witness and although he denied his attestation, it was proved that he not only signed as a witness but also that he knew about the contents..
17. ' Now coming to the facts of the present case the learned Judge in the: High Court has given a clear cut finding in para 11 in the following words:- "The aforesaid evidence obviously leads to the conclusion that preemptor was a consenting party to the alienation of the suit land by his mother to the vendee-defendant."
18. ' Initially the learned Sub-Judge had also recorded the same finding on the evidence then on the file. However, this finding of fact was set aside by the learned District Judge in his judgment pronounced on 11-12-1973. The learned District Judge pointed out some contradictions between the witnesses and observed that their evidence could not be relied upon. He also held that consent cannot be inferred from oral evidence and in this connection relied on PLD 1962 Pesh. 14, PLD 1968 BJ 6 and an unreported case of the Azad Jammu and Kashmir High Court Muhammad Din v.
19. Abdullah decided on 16-6-1962. This unreported judgment is not before me. However, I have perused the other two cases and find that no such proposition has been laid oral evidence the factum of consent, waiver of estoppel. The learned Judge 1 down in these cases. In fact there is no law to stop a person from proving by then observed that if the plaintiff was really a consenting party or wanted to waive his right he should have given a notice to that effect in the sale-deed. The evidence was then appraised by the learned Judge of the High Court in the: judgment pronounced on 17-9-1978. By that time the additional evidence in the shape of statements of two finger print experts had also been recorded. After an elaborate discussion the learned Judge recorded his following conclusion:- "I have no doubt that in view of this evidence it is proved beyond doubt that. Muhammad Rashid was present on the spot when the sale-deed was written and he affixed his thumb impression on the same and also signed it.
20. ' As stated earlier, no particular evidence is necessary to prove waiver. The presence of the plaintiff, Muhammad Rashid at the time of sale and at a place where he had no other business to be present and about which presence he has no explanation to offer, whatsoever, does in my opinion, clearly signify his agreement to the sale in question."
21. ' This judgment was set, aside by this Court on the ground that there was inordinate delay between the hearing of arguments and the pronouncement of judgment. After the remand the evidence has again been examined by a learned Judge of the High Court. It is well settled that it is not the function of this Court to enter into reappraisal of the evidence and findings of facts recorded cannot be vacated even if another view of the evidence is possible. The findings of fact can be set aside by this Court .Only if' they are result of gross misreading or non-reading of evidence. In the judgment under appeal all the material evidence on the record has been duly brought under consideration by the learned Sub-Judge, the learned District Judge as well as by the High Court.
22. Before me the learned counsel who appears for the appellant pointed out that there are discrepancies between the statements of the witnesses on the point as to who asked Muhammad Rasheed Khan appellant whether he wanted to purchase the suit property. Although I find that this discrepancy is there but I also find that the witnesses are one on the point that in their presence the appellant stated clearly that he did not want to purchase the property and his mother might do so. The discrepancy mentioned above was duly considered by the learned Judge in the High Court and despite that, in view of the overall evidence led by the parties, came to the conclusion that pre-emptor was a consenting party. In the judgment under appeal the following findings have been recorded:
(i) The thumb impression on the sale-deed is proved to be that of Muhammad Rasheed. Khan, the pre-emptor. Finger Print Expert, Mr.' Muhammad Yaqoob Khan, D.S.P., testified that the thumb impression on the sale-deed was identical to the admitted thumb impression of the plaintiff. The lengthy cross-exmination to which he was subjected did not shake his testimony. The other Finger Print Expert, Mr. Zaka ' A. Malik gave the opinion that thumb impression on the sale-deed was superimposed and did not provide sufficient material to form a conclusive opinion.
(ii) The signature of Muhammad Rasheed Khan on the sale-deed also `compared' with the admitted signature on the power of attorney filed in the case.
(iii) The overall result of the evidence of Munshi Feroz Din, Petition Writer; the scribe of the sale- deed, Munshi Ahmad Ullah, another marginal witness, Mina Khan, husband of vendor Mst. Nishada Begum and stepfather of the plaintiff, and Sardar Sajawal Khan, defendant, leads to the conclusion that pre-emptor was a consenting party. The. Testimony of these witnesses and the discrepancy, mentioned above, were duly analysed. It was also noted that. Mst. Nishada Begum was produced by the pre-emptor but she was not asked any question about the presence of the plaintiff as well as affixation of thumb impression or signature on the sale-deed.
23. No part of the evidence was pointed out to me which was not considered by the Courts below or the High Court. Thus, no case for interference in the findings of fact has been made out.
24. ' Before parting with the case I may point out that the learned counsel raised another point while opposing'the acceptance of the appeal. The point is that the High Court of Azad. Jammu, and Kashmir, while acting under the provisions of the Enforcement of Shariat 'Act, has declared that the provision of Right of Prior Purchase Act which entitles a person to claim prior right on the basis of kinship is against the injunctions of Islam. The learned counsel referred to the unreported judgment of the High Court titled Muhammad .Tamil Niazi v. Nazar Hussain and another decided on 24-1-1991.
25. This Court have had -an occasion to examine a similar contention raised in another case and has rejected the plea on account of the clear position that a simple declaration by the High Court which is not followed by an amendment does not repeal or invalidate the relevant, provision of law which has been found against the injunctions of Islam. However, since I have otherwise decided to reject the appeal it is not necessary to decide this point in the present case.
26. In light of the proved facts of the case and the state of law as discussed above, I hold that the appellant had clearly waived his right to sue for pre- emption. I, therefore; dismiss the appeal with