' Briefly stated facts, out of which this R.SA. has arisen, are that the plaintiffs respondents filed a suit to pre-empt the sale of agricultural land situate in Chak No,20/MR, Tehsil and District Multan, which sale took place vide registered sale-deed dated 2-10-1977. The suit was filed on 1-10-1978 on the grounds that the plaintiffs are owners in estate to be a stranger (sic). This suit was contested inter alia on the ground of partial pre-emption, estoppel, bar of limitation, deficient value for the purpose of court-fee and jurisdiction and on the ground that the pre-emptors do not possess superior right of pre emption and cause of action and have no locus standi to file this suit.
2. On the basis of the pleadings of the parties, learned trial Court framed the following issues:--
(1) Whether the suit property has been incorrectly described in the plaint. If so, its effect?
(2) Whether the plaintfiffs are estopped from bringing this suit?
(3) Whether this suit is barred by limitation?
(4) Whether this suit has been improperly valued for the purposes of court-fee and jurisdiction? If so, its effect?
(5) Whether the plaintiffs have no cause of action and locus standi to bring this suit?
(6) Whether the plaintiffs have superior right of pre-emption as against the defendant-vendees?
(7) Whether Rs.75,000 were fixed in good faith or paid by the defendant-vendee to the vendor?
(8) What was the market value of the suit propeIty at the time of its sale in favour of the defendant-vendee?
(9) Relief. ' and after recording of evidence vide judgment and decree passed a decree in favour of the respondents on 14-3-1983 deciding all the issues in favour of the pre-emptors except issue No,8 which was held in favour of the vendee-defendant. Judgment and decree passed in the suit was challenged by the vendee by way of first appeal which has been dismissed by the learned Additional District Judge, Multan vide order dated 19-10-1983. Both the judgments and decrees have been challenged by the vendee-defendant through this R.S A.
3. In support of this appeal, learned counsel for the appellant has argued that the two learned Courts below have misread the evidence and have failed to take into consideration the sale deed Exh.D.1 which proves that the vendee purchased agricultural land on 24-1-1979 during the pendency of the suit which was filed on 1-10-1979 which had not been decreed as yet and, therefore, the vendee having improved his status prior to the decree i.e. the third stage till when the pre-emptor is to retain the superior right of pre-emption, the suit was liable to be dismissed but the two learned Courts below have illegally decreed the suit. Learned counsel has further argued that the respondents were estopped to fde the suit and the finding in this behalf is not lawful.
Elaborating his argument, on this point, learned counsel has further argued that the witness produced by the vendee namely Syed Sanwal Shah D.W.1 has deposed that the pre-emptors were present at the time of sale transaction and they refused to purchase the land in question and that similar statement has been made by Sardar Khan D.W.2. Learned counsel admits that Syed Sanwal Shah D.W.1 was not a marginal witness to the sale-deed and further there is no evidence with regard to the other necessary constituent parts for the applicability of waiver in the case in hand except the statements of two witnesses about the refusal of the pre-emptor to purchase the land in question. However, oral evidence has been controverted by the statement of Allah Bakhsh pre- emptor who has appeared as P.W.1 as his own witness and has categorically denied the presence of the pre-emptors at the time of sale. Learned counsel has further argued that the sale-deed was registered on 2-10-1977 whereas the suit was instituted on 1-10-1978 and as the vendees took possession of the land prior to the registration of the sale-deed, the suit shall be deemed to be barred by time. Learned counsel however has admitted that there is no evidence with regard to the taking of possession of the land in question prior to the excecution and registration of the sale- deed.
4. As against the above arguments addressed by the learned counsel for the appellant, learned counsel for the respondents has argued that the . appellant vendee could not have improved his status after the institution of the suit by virtue of the provisions of section 21-A of the Punjab Pre- emption Act, 1913 which is reproduced as under:-- "Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of the pre- emptor plaintiff in such suit."
' The claim of the appellant with regard to the improvement of the status is through sale and, therefore, the purchase of land during the pendency of suit will not enure to the benefit of the vendee. Learned counsel has further argued that the suit is within time. Plea of delivery of possession is not proved as there is no evidence that the possession was taken earlier to the execution and registration of the sale-deed and, therefore, the two Courts below have rightly held the issue against the appellant. Learned counsel has further argued that there is no relinquishment of right of pre-emption and two Courts below have rightly refused to entertain the plea of waiver in absence of any evidence which will constitute estoppel or waiver.
5. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record. Admittedly, the appellant was not the owner in the estate at the time of sale or at the time of institution of the suit. He purchased the land during the pendency of the suit and, therefore, this purchase will not enure for the benefit of the vendee as per provisions of section 21-A of the Punjab Pre-emption Act. Hence, the two Courts below have rightly held that the respondents possess a superior pre-emptive right. The issue of estoppel and limitation has also been correctly decided by the two Courts below. There is absolutely no evidence of waiver or estoppel. It is established principle of law that in order to constitute estoppel or waiver, cogent evidence of active participation of the pre-emptor in the sale negotiation as well as his knowledge with regard to the price settled, his refusal to purchase the land on that price and his express relinquishment of right to pre-empt amounting to assurance to the vendee that he will not file a pre emption right, is required, to debar a pre-emptor to claim right of pre-emption by filing of a suit.
Refer cases of Hakam Ali v. Fazla 1986 CLC 1183 and Hafiz Hassan Muhammad and 2 others v.
Abdul Hameed and 2 others PLD 1982 SC 159. In the case in hand no such evidence has been produced and, therefore, it cannot be said that the finding of the two Courts below is liable to be interfered with as the same is not based on misreading or non-reading of evidence and is not even otherwise legally infirm. The question of limitation has also been rightly decided by the two learned Courts below, inasmuch as the plea of delivery of possession prior to the execution and registration of sale deed has not been specifically raised in the written statement nor is there any evidence to that effect. Consequently finding of the learned two Courts below on the issue of limitation is also upheld. Resultantly I see no force in this appeal, the same is, hence, dismissed with costs throughout.