1. ' Solitary issue surviving for decision in the second appeal arising out of a pre-emption suit was, whether the pre-emptor had waived pre-emption and was estopped to sue for it as was held in the lower appellate Court.
2. ' Facts which gave rise to the second appeal were briefly these:-- 49 Kanals, 16 Marlas of agricultural land situate at Mauza Bothana in Tehsil Dipalpur of the then District Sahiwal belonged to Muhammad Din. By a deed registered on 14-7-1967, he sold it to Abdul Rehman of Chak No,29/D Kalianwala in Tehsil Dipalpur for a sum of Rs,12,000. Ghulam Muhammad as real brother of the vendor and co-sharer with him claimed pre-emption in respect of the above sale and sued for it on 1-7-1968. Vendee resisted the suit and repudiated averments in the plaint. Apart from a few other immaterial objections, it was averred that the plaintiff was a party to the sale and declined to purchase the land upon it being offered to him. Therefore, he had waived his pre-emption and was estopped to claim it. On 23-9-1968, the trial Court framed appropriate issues. Issue No,3 embraced the plea of waiver and estoppel. Its onus of proof was placed on the vendee-defendant. Plaintiff opened his case. He save evidence of a village Patwari to prove quinquennial averages of the sale price, himself appeared as P.W.2; produced copy of mutation Exh.P.2; Jamabandi Exh.P.3 and closed affirmative evidence. In his in-chief examination, he denied knowledge of sale of the land and deposed that his relations with his brother Muhammad Din were not cordial. Plaintiff expressly denied the suggestion that he had brought about the sale of the land. Vendee-defendant gave evidence of five D.Ws. And himself appeared as D.W.6. Witnesses produced by him were Allah Bakhsh D.W.1, Khushi Muhammad D.W.2, Muhammad Hanif D.W.3, Ali Akbar D.W.4 and Muhammad.
3. Shall D.W.5. D.W.3 Merely proved statement of annual net-profits Exh. D.2. His testimony was not relevant to the plea of estoppel. D.W.1 deposed about the presence of the plaintiff at the time of striking of the bargain for sale of the land and the registration of the sale-deed. Similar were the testimonies of D.W.2 and D.W.S. D.W.4 was a deed-writer of Sahiwal. He scribed the sale-deed Exh.D.1. He deposed that the vendor was accompanied by his brother who was a Lambardar.
4. Though, he knew the vendor but he was not personally known to his brother. Nonetheless, he deposed that the plaintiff was present at the time of writing of the sale-deed by him. D.W.6 gave evidence that the plaintiff was present at the time of striking of bargain and execution as well as registration of the sale-deed at Sahiwal. He attributed certain acts to the plaintiff to infer his consent to the sale sought to be pre-empted by him later. Upon conclusion of the defendant's evidence, plaintiff produced two more witnesses namely Sheikh Ahmad and Saeed-ud-Din, in rebuttal for disproving act of waiver by him. Upon scrutiny and careful analysis of the evidence adduced by the parties, on 19-2-1969 the trial Court found for the plaintiff and decreed pre- emption of the land in his favour, subject to payment of Rs,12,000 (minus Zar-i-Panjum already deposited) to be deposited by 15th of March, 1969. In default, pre-emption suit was to stand dismissed with costs. Plea of estoppel was found against the defendant-vendee. He preferred an appeal which was allowed by learned District. Judge, Sahiwal, on 17-10-1969 by holding differently from the trial Court on the plea of estoppel. It was held by him that the defendant's evidence sufficiently proved the plea of estoppel against the plaintiff. Consequently upon this finding, pre- emption suit was found incompetent. Thereupon, it was the turn of the plaintiff to come up in second appeal which he did by filing the same in the High Court. His appeal to examine the plea of waiver sought to be proved by oral evidence was admitted to hearing on 5-5-1970. It was partly heard on 21-3-1993 and its further hearing concluded today.
5. ' In course of second appeal, Ghulam Muhammad appellant died. His successors were substituted for him on record who continued the appeal on his behalf. It was strenuously contended for them that oral evidence was grossly inadequate to sustain the plea of estoppel held proved in the lower appellate Court. It was argued that striking circumstances were visibly overlooked and bypassed by the lower appellate Court to hold the plea of waiver established against the appellant. Correct reading of record ought to have convinced the judicial mind otherwise. Learned counsel argued that the evidence produced in defence of the plea of estoppel was shaky and sketchy besides being patchy also. He invited the attention of the Court to large body of case-law covering different facts of the plea of estoppel and the standard of evidence required for proof of it in a Court of law.
6. Since the principle were settled, it was considered unnecessary to make an indepth survey of the case-law relied upon by him. Learned counsel for the respondent defended the impugned judgment and submitted that the evidence led by the respondent sufficiently discharged the onus of proof lying on him to prove that the plaintiff was a party to the sale and consented to it which had stripped him of right to claim pre-emption in respect of it. This brings me to deal with the crux of the matter. Before adverting to the oral evidence on either side given in proof or disproof of the plea of estoppel and the weight attaching to it for deciding of the plea, I wish to mention a few important factors having a material bearing on the decision of the issue.
7. ' Land sought to be pre-empted was situated in mauza Bothana of Tehsil Dipalpur. Its owner was also resident of the same revenue estate. Vendee hailed from a different Chak. Pre-emptor, like his brother-vendor belonged to village Bothana. Oral bargain for sale of the land was arrived at about fourteen or fifteen days prior to the execution and registration of the sale-deed at Sahiwal. In absence of clear evidence about venue of bargain, it must have taken place in village Bothana, the place where the land was situate and the owner was resident of. None from village Bothana was shown to have been associated with the bargain. Outsiders from other villages were made to witness it and give evidence in support of it. It was unthinkable that no person of trust was forthcoming from village Bothana. Further, though adequate arrangements existed at Dipalpur for execution and registration of the sale-deed, yet its venue was shifted to a far-off place at Sahiwal on a flimsy pretext that a deed-writer there was known to Ghulam Muhammad who was likely to charge less remuneration for writing of the sale-deed. Money for purchase of stamps and payment of sale-price was withdrawn from a local Bank at Dipalpur. It was not denied that facility of stamp- papers for scribing transaction of sale on them was also available at Dipalpur. Shifting of venue for the execution of sale-deed from Dipalpur to Sahiwal was surrounded in mist of doubts. The scribe who was a chief motif for change of venue brought the cat out of bag, when he deposed that Ghulam Muhammad was not known to him.
8. ' There was yet another factor which could not be easily brushed aside, and, it was, that if Ghulam Muhammad was present at the material occasion, why was it that his signatures to the deed were not taken on it for conveying his consent to the sale in it. With insertion of appropriate words in the sale-deed and the signatures of Ghulam Muhammad on it, would have put the matter out of dispute for the respondent-vendee. Omission of Ghulam Muhammad to act as an attesting witness of the sale-deed may be taken to be clearly indicative of his absence at all material times.
9. It was striking to observe that except for the vendor, no person from village Bothana witnessed execution and registration of the sale-deed respecting the land-in-dispute. Reverting to the oral testimony of the witnesses deposing about acts of waiver, it was significant that Ghulam Muhammad plaintiff all along vociferously claimed his total disassociation from the sale of the land by his brother. He deposed on oath that he was unaware of the sale and had no knowledge of it. Defendant gave some evidence to prove that the plaintiff declined an offer of sale of land on account of lack of funds with him. Plaintiff sternly denied it and repudiated the suggestion about the offer of sale of land to him. On the contrary, he expressed complete absence of knowledge of the sale. There was yet another factor which improbabalized presence of Ghulam Muhammad at the time of execution of the sale-deed and its registration. The sale-deed was executed at Sahiwal, on 13-7-1967. It was presented for registration on 14-7-1967. Allah Bakhsh Lambardar of Mauza Awan Kalan witnessed the execution of the sale-deed and identified the parties before the Joint Registrar. There was no evidence to show that Ghulam Muhammad stayed at Sahiwal for two days.
10. Further, sale-deed contained a recital that relations of Muhammad Din vendor with his relatives were not cordial. This recital gave strength to the statement of Ghulam Muhammad when he deposed that his relations with his brother were unhappy. Waiver was a conscious abandonment of a known right. As observed in Murida v. Hayat Muhammad, etc. PLD 1968 Baghdadul-Jadid 5 by Inamullah Khan, C.J. "It may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right". To deprive a person of right of pre- emption on ground of waiver or estoppel, there must be cogent, strong and convincing evidence justifying that course. Mere statement of a few witnesses deposing about the presence and knowledge of the sale by would-be pre-emptor could not prove relinquishment of right by him. This is what the learned District Judge did in the appeal. His finding was not supported by evidence and natural probabilities of the case. Many important links of evidence and material inferences were omitted by him. To speak with respect to him, he did not correctly reproduce the record of evidence in his judgment. Since his judgment on plea of estoppel was at variance with that of the trial Court, divergent views expressed in this behalf fell for fresh comparison in appeal by this Court in the light of principles given in the case of Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 Supreme Court 617. I must observe that oral evidence given to support waiver was of a usual nature and was not much impressive and convincing.
11. ' Learned District Judge erroneously felt enamoured of it. I would, therefore, disagree with him and uphold the view expressed by the trial Court which appeared more in accord with the circumstances of the case. In result, appeal is allowed. Impugned judgment and decree of learned Districl Judge dated 17-10-1969 are set aside and those of the trial Court restored to take effect accordingly. Parties shall bear their own costs in this Court.
12. ' Records be returned.