' Jam Pallo (herein appellant) is vendee/defendant while Bashir Ahmad (herein respondent No,1) is pre-emptor/plaintiff and Wahid Bakhsh vendor (herein respondent No,2) is the father of Bashir Ahmad. The subject-matter of litigation is agricultural land measuring 11 Kanals 9 Marlas with corresponding share in Shamlat situated in revenue estate Garwahn, Tehsil Ahmadpur East, District Bahawalpur.
2. The facts briefly stated, giving rise to this appeal are; that respondent No,2 made the sale of suit land in favour of the appellant for a sum of Rs,3,000 by means of oral transaction incorporated in Mutation No,895 which was attested on 17-10-1966. Respondent No,1 brought a suit for pre-emption of said sale in the Court of learned Civil Judge, Ahmadpur East on 16-10-1967 alleging therein that he possessed superior right of pre-emption qua the appellant as he was the son of respondent No,2; that the sale was made for a sum of Rs, 600 and fictitiously sum of Rs,3,000 was incorporated in the aforenoted mutation. The suit was contested by the appellant who took up the plea that the sale transaction embodied in the impugned mutation was in substance an exchange and not a sale. According to the appellant, the parties to the transactions were owners of agricultural land in two revenue estates namely Jhamrani and Garwahn and they agreed to enter into a transaction of exchange by which the appellant secured the suit-land while Wahid Bakhsh obtained the land in Mazza Jhamrani from the appellant. The transaction of sale was entered into the revenue record on the advice of the Girdawar who stated to them that transaction of exchange was contrary to the provisions of Martial Law Regulation 64 and could not be given effect to in the revenue record.
On merits, it was pleaded in the written statement that respondent No,1 has, in fact, filed suit for pre-emption on the asking and for the benefit of respondent No,2; that respondent No,1 had participated in proceedings relating to transaction of sale from inception to finish and therefore, he was estopped to file the suit on account of his conduct.
3. On these pleadings, the learned trial Court framed as many as seven issues, out of which the arguments were addressed by the learned counsel for parties on issues Nos.1, 1-A and 3 which are as follows:--
(1) Whether the alienation of land is exchange and not a sale?
(1-A) Whether the plaintiff has instituted suit for the interest of defendant No,2, if so, what is its effect?
(3) Whether the plaintiff has waived his right of pre-emption by act or deed?
4. The parties led their oral as well as documentary evidence in support of their respective contentions. Upon the consideration of same, the learned trial Judge decided issues Nos.1 and 3 against the appellant, however, found issue No,1-A in his favour. The learned first Court held that the suit was filed by respondent No,1 for the benefit of respondent No,2. On this conclusion, the learned trial Judge dismissed the suit. On appeal by respondent No,1, the learned appellate Court did not agree with the finding of the first Court on issue No,1-A and concluded that mere securing the certified copies of Khasra Girdawari from the Revenue Authorities by respondent No,2 did not establish that suit was lodged for the benefit of respondent No,2. In view of this finding, the learned appellate Court set aside the judgment and decree of the first Court and decreed the suit. This decision of the appellate Court is the subject-matter of challenge in this regular second appeal.
5. The arguments advanced on behalf of the appellant can be conveniently summarised as follows:-- ' Firstly, That the two Courts below have decided issue No,1 with patent illegality. According to the learned counsel there was sufficient evidence on the record which clearly established that the transaction embodied in Mutation No,895 was in reality an exchange and not a sale. For this purpose, the learned counsel relied upon the testimony of D.W.-1 Pallo, D.W.-2 Kilawar Khan, D.W.-3 Ghulam Muhammad, D.W.-4 Siddique Muhammad Girdawar, D.W.-6 Malik Abdul Qadir and D.W.-7 Maulvi Manzoor Ahmad. According to the learned counsel, there was no reason for the two Courts below to ignore the evidence of Maulvi Manzoor Ahmad D.W.-7 who gave evidence contrary to his own interest. The testimony of Manzoor Ahmad in conjunction with the testimony of Jam Pallo fully demonstrated that the transaction contained in the afore-noted mutation was not a sale but an exchange. Reliance was placed on Darwesh v. Khuda Dad (PLD 1987 Lah.123) and Ram Baddan Lal and others v. Kunwar Singh (AIR 1938 All.229).
' Secondly, That the two Courts below have not appreciated that respondent No,1 was the son of respondent No,2; that respondent No,2 after making the transaction, had taken all steps necessary to initiate litigation. According to the learned counsel, it was he who secured the certified copies of the Revenue Record for the purpose of calculation of court-fee leviable on plaint; it was he who provided funds for the institution of the suit. On the strength of these circumstances, it was contended that the suit was filed for the benefit of respondent No,2 by respondent No,1 and that respondent No,1 was estopped by his conduct to file the suit. Reliance was placed upon Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403).
6. On the contrary, learned counsel for respondents, strenuously supported the impugned decision.
At the outset, he took up a preliminary objection to the maintainability of this appeal by contending that the conclusions of facts arrived at by two Courts below on issues Nos.1, 1-A and 3 related to the question of fact and could not be interfered with in second appeal unless and until they were shown to have been reached by nonreading/misreading of evidence. According to the learned counsel, the appellant had not pointed out any misreading or non-reading by the two Courts below. On the strength of this contention, it was suggested that this second appeal merited to be dismissed.
7. It was next contended that the finding of the trial Court on issue No,1 was not challenged by the appellant before the first Court of appeal; that the same was not challenged in the memo. Of appeal filed by the appellant. According to the learned counsel, the appellant was precluded to challenge the conclusions of two Courts below on issue No,1 on this ground.
8. From the above narration, the following questions fall for decision:--
(i) Whether the appellant is entitled to challenge the findings of the two forums below on issue No,1?
(ii) Whether the impugned sale is in reality an exchange and not a sale?
(iii) Whether respondent No,1 is estopped by his conduct to institute the suit for pre-emption?
9. Before I proceed to deal with the questions noted above, I find it appropriate to reiterate two well known and well settled laws having decisive bearing on these questions. Firslty, that when a party to suit does not raise/urge a specific point before the first appellate Court, that party is not entitled to urge/raise that point before this Court under section 100 of the Code of Civil Procedure except where the point raised relates to a question of jurisdiction or a question of law on admitted/proven facts. If any authority is needed in support of this proposition, reference be made to Manindra Chandra Nandi v. Durga Parsad Singh (AIR 1917 PC 23), wherein it was held:-- "In the absence of any exceptional conditions it was not open to the appellant to raise as a fresh point in appeal an issue which had not been raised before the subordinate Judge or the High Court and might then have been raised in a convenient form and at an opportune time and that there was no valid reason in the present case for departing from the established practice of Privy Council."
' The same principle was reiterated in Ram Kinkar Rai and another v. Tufail Ahir and others (AIR 1931 All. 35), Arshad All v. Haji Muhammad Ali (1988 MLD 780), Muhammad Sadiq Khan v. Muhammad Saleem Khan (1988 MLD 1976), Wall Muhammad v. Ghulam Rasul (1988 MLD 2804), Muhammad Aslam v. Imam Bakhsh (1980 SCMR 879) and Noor Muhammad v. Muhammad Hussain (1978 SCMR 1). Secondly, that the waiver is as an intentional relinquishment/abandonment of a right by owner of such right. The same has to be proved by cogent, unequivocal and unimpeachable evidence.
Waiver is not to be readily inferred or implied. It had to be established by express evidence. The question of waiver came up for consideration before the Supreme Court in Jam Pari v. Muhammad Abdullah (1992 SCMR 786).
' After review of the case-law especially, Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403), His Lordship Mr. Justice Muhammad Afzal Lone, while speaking for the Bench approved the rule laid down in Baqri's case in following words:- "(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 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".
10. Guided by aforenoted enunciation of law, I find it appropriate to deal with the questions noted above. Coming to the first question, it is manifestly clear that the learned first Court has reached the conclusion that the plea of exchange as set up by the appellant was wholly illogical and was not borne by the record. The appellant had not challenged the said finding of the first Court before the first appellate Court. Not only this, the appellant did not find it proper to incorporate this point in the memorandum of appeal filed in this Court. In view of this factual position, I am of a considered opinion that the appellant is now precluded to raise this question before the first appellate Court on issue No,1. Even otherwise on this issue, after the review of oral as well as the documentary evidence led by the parties, the learned trial Judge came to the conclusion that version of appellant was illogical and wholly untenable inasmuch as that the appellant was not entitled to lead evidence contrary to his admission made before the Revenue Authority at the time of attestation of mutation. The finding of the trial Judge was not challenged by the appellant before the appellate Court. I have perused the evidence on record. The learned trial Court had correctly disbelieved the evidence of D.W.-1 Pa11u, D.W.-2 Delawar Khan, D.W.-3 Ghulam Muhammad, D.W.-4 Siddique Muhammad Girdawar and D.W.-7 Maulvi Manzoor Ahmad. The evidence of these witnesses is completely belied by entries of Khasra Girdawari which show that Wahid Bakhsh never took possession of land situated in revenue Estate Jhamrani. The conclusion of learned trial Court even on merit is, therefore, not open to exception under section 100, C.P.C. Seen from this perspective, I have no difficulty in coming to the conclusion that the conclusion arrived by two Courts below on issue No,1 i,e, exchange is eminently correct and congruent with the well-known principle of appraisement of evidence. This conclusion, in my estimation, is not open to exception under section 100 of the Code of Civil Procedure. The contentions raised by the learned counsel for the appellant are, therefore, found to be wholly devoid of force and are accordingly repelled.
11. This brings me to the last question i,e, question No,III. Applying the rule laid down in Jam Pan v.
Muhammad Abdullah (1992 SCMR 786), it is quite clear that the appellant had not produced an iota of evidence in order to substantiate the plea of waiver. He did not utter a single word stating therein that the suit was instituted by respondent No,1 at the behest of respondent No,2. There is sufficient material on record that respondents Nos.1 and 2 live separately; that respondent No,2 is a major and is looking after his interest independently. In view of this material, the appellate Court was correct in holding that the circumstance of securing certified, copies from the Revenue Authorities would not be deemed to be a circumstance establishing that the suit has been filed for the benefit of respondent No,2 and not by the respondent No,1 himself. This conclusion of the appellate Court is entirely correct and does call for interference by this Court.
12. In the light of foregoing discussion, this regular second appeal is found to be wholly without merit and is accordingly dismissed leaving the parties to bear their own costs.