1. ' Only material issue surviving for decision in the civil revision filed by the pre-emptor was, whether he had waived his pre-emption and was estopped to sue for it as held in the lower appellate Court.
2. Facts bearing on the decision of the issue were briefly these:-- A double-storeyed house bearing Survey No,1-16-S-37 situated inside Kot Fateh Din of Kasur City was owned by Muhammad Din and otheRs, They sold it to Ch. Muhammad Hussain for a sum of Rs,10,000, on 14-11-1973, through a registered deed. Wazir Muhammad (hereinafter referred to as petitioner) claimed pre-emption in respect of the above sale and sued for its enforcement, on 2-10-1974. Likewise, Asghar Ali also claimed pre-emption in respect of the sale and brought a suit for preemption in respect of it. Both set of pre-emptors asserted their superior right of pre-emption on account of downing of properties contiguous to the house sold and holding of easementary rights. Both the suits were consolidated for a joint trial in the trial Court. Common set of issues were framed in the trial. Upon taking of evidence from the parties, Civil Judge, Kasur, decreed preemption in favour of the petitioner, on 28-3-1983, and, dismissed the rival preemption suit instituted by Asghar Ali. Vendee and the rival pre-emptor preferred two appeals from the decree of the trial Court. On 10-7-1986, Additional District Judge, Kasur, set aside the pre-emption decree and remanded the suit for a fresh trial upon framing of additional issues. In consequence, the trial Court settled as many as fifteen issues, on 22-9-1986. Parties gave further evidence, in respect of re-settled issues. On 28-11- 1987, the trial Court again decreed pre-emption in favour of the petitioner, subject to payment of Rs,12,015 as the purchase price to be deposited within the specified period. Pre-emption suit brought by Asghar Ali was simultaneously dismissed. It was held that his right of pre-emption was not superior qua the vendee and he had waived his right also. Ch. Muhammad Hussain preferred an appeal from the decree of the trial Court. Asghar Ali did not choose to file an appeal. In the circumstance, he shall be deemed to have accepted the judgment.
3. ' Thenceforth, he was out of the arena. On 30-3-1988, the appeal preferred by Ch.Muhammad Hussain was allowed by learned Additional District Judge, Kasur, who found that the petitioner had waived his pre-emption and was, thus, estopped to sue. Consequently, the pre-emption decree in favour of the petitioner was set aside on the sole plea of estoppel. Superior right of preemption claimed by the petitioner on the ground of being a contiguous owner of the house was found proved. It may be advantageous to observe that though the pre-emption suit was tried on as many as fifteen issues in the trial Court, yet the controversy was much narrowed down in revision for consideration of the only plea of waiver/estoppel by the petitioner. Findings on other issues were not questioned at the hearing by either side. The defence pleas regarding waiver/estoppel were reflected in two issues Nos,3 and 11. These issues were as follows:-
(3) Whether the pre-emptors are estopped by their words and conduct to file the suits ? OPD.1
(11) Whether the pre-emptors were present at the time of sale and they participated in the striking of bargain? If so, its effect ? OPD.1.
4. ' Waiver/estoppel was sought to be established on the testimony of the vendee; a witness namely Muhammad Hussain and agreement marked Exh.D.W.4/1. Vendee appeared twice in the witness- box as D.W.10 and D.W.12. Muhammad Hussain was D.W.11. Agreement to sell marked Exh.D.W.4/1 was scribed by Fida Hussain Deed Writer, on 25-9-1973. It was written on two leaves of four rupees stamp-papeRs, It was signed by Nawab-udDin, Asghar Ali and thumb-marked by Khushi Muhammad son of Amir Ali, Muhammad Ashiq son of Wazir and Khushi Muhammad son of All Muhammad. Nawab-ud-Din and Khushi Muhammad sons of Amir All were the vendors of the house. Asghar All was a rival pre-emptor. Muhammad Ashiq was son of the petitioner. The stamp- vendor and the scribe of the deed did not appear in the witness-box. Muhammad Ashiq also did not step in the witness-box to give evidence on either side. There was no evidence to identify his thumb prints on the deed. Khushi Muhammad son of Amir All also did not step in the witness-box.
5. Nawab-ud-Din as D.W.5 did not depose about the presence of either the petitioner or his son at the time of execution of the agreement Exh. D.W.4/1. Khushi Muhammad son of Ali Muhammad, also a marginal witness of Exh.D.W.4/1 did not utter on the presence of the petitioner and his son. Rival pre-emptor Asghar All had denied his signatures on Exh.D.W.4/1. The trial Court compared his signatures on Exh.D.W.4/1 with his signatures on the photo copy of his identity card and found them' similar. Hence, it found that he had waived his pre-emption. Petitioner in his statement recorded twice denied on oath his presence at the time of execution of agreement Exth.D.W.4/1 and deposed that he was wholly unaware of the agreement and the consequent sale of the house in favour of Ch. Muhammad Hussain. He gave evidence that his relations with his son Muhammad Ashiq were strained and his act, even if proved did not bind him. Ch. Muhammad Hussain deposed that the petitioner had brought about the sale of the house in his favour and his son signed the Iqrarnama.
6. In cross-examination, he conceded that prior to the sale of the house, he gave no notice to the petitioner. Further, he was not aware of any such notice by the previous owners of the house.
7. Muhammad Hussain D.W.11 testified that the petitioner and his son Muhammad Ashiq were present at the time of making of the sale of the house and both had thumb-marked the agreement in his presence. In his cross-examination, the witness deposed that he also had thumb-marked the agreement. Thumb-impressions of the petitioner and the witness were conspicuously absent on the agreement. It was strikingly significant to notice that if the petitioner was present on the occasion why was his signature or thumb-impression not taken on the agreement, and, instead the thumb-impression of his son obtained on it, particularly when the rival pre-emptor purportedly appended his signature to it. In ordinary circumstances, signature of the petitioner would have been more in point and helpful to sustain the plea of estoppel. Absence of the petitioner's signature or thumb-impression on the agreement was indicative of his absence at the occasion. Therefore, petitioner's A presence at the aforesaid occasion was exceptionable and much doubtful. There was not a shred of evidence to establish petitioner's collaboration in the impugned sale. Onus to establish waiver/estoppel heavily lay on the vendee. He was obliged to discharge this burden of proof by giving credible and convincing evidence. Evidence of a stray witness speaking on the conduct of the petitioner was clearly insufficient. Waiver was conscious relinquishment of a known civil right by clear words or conduct leading to a conclusion that the pre-emptor gave his consent to the sale showing his unequivocal mind that he was not interested in it. Assumed presence of Muhammad Ashiq, which fact was not proved otherwise, did not prove petitioner's consent to the proposed sale to denude him of his clear right of pre-emption. Malik Saeed Hassan, Advocate, learned counsel for the respondents vehemently argued that finding of fact of whatever kind recorded by the lower appellate Court was completely immune from searching scrutiny in revision.
8. Binding nature of the finding on question of fact was stressed and it was urged that it could not be reviewed and upset. He further urged that sufficiency or otherwise of evidence to support a finding of fact or weight or credibility of oral evidence was for a final. Court of fact to determine and should not be the concern or headache of the Court sitting in revision. In my view, it was a fairly wide statement of law and could not be accepted in the abstract. Each and every finding on question of fact by a Judge in appeal was not wholly sancrosanct. If record was misread or grossly erroneous inferences were raised from it or there was scant evidence to support a finding, the Court in revision could competently review the finding. In the instant case, virtually it was a finding without evidence to support it. Learned Judge in appeal stitched together 'a few threads of little weight from the record and built up a castle of estoppel on it for denying pre-emption to the petitioner. It was observed in the cases reported in AIR 1935 Calcutta 102,AIR 1931 Calcutta 27, AIR 1929 Nagpur 228, AIR 1949 Himachal Pradesh 4, that clause (c) of section 115, Civil P.C. Was purposely and advisedly left in indefinite language in order to empower the High Court to interfere with gross and palpable errors of subordinate Courts, and to prevent manifest injustice in non-appealable cases.
9. Further, a wrong decision on question of estoppel led to a clear failure to exercise jurisdiction by the lower appellate Court. Upon review of the record, it is my firm conviction that waiver/estoppel was not established at all but I shall not employ a strong adjective for discarding the finding. Learned counsel for the petitioner stated that the decretal money was since long deposited in terms of the decree passed by the trial Court.
10. ' In view of aforesaid, civil revision is allowed. Impugned judgment and decree of leatned Additional District Judge are set aside and, instead, those of the trial Court in favour of the petitioner are restored. However, there shall be no order for costs of litigation in this Court.