' This Second Appeal under section 100 of C.P.C. Is at the instance of Asghar Ali and five others, who are legal heirs of late Ghulam Muhammad/pre-emptor/plaintiff and is directed against the judgment and decree passed by the learned Addl. District Judge, Sheikhupura dated 4-9-1989 dismissing the first appeal filed by the appellant and affirming the judgment and decree passed by the learned first Court dismissing the suit.
' Few facts, necessary for the disposal of This appeal are: that the respondents purchased agricultural land measuring 110 kanals 17 marlas situated in Revenue estate, Thatti Bhattian, Tehsil Ferozwala, District Sheikhpura, from one Mst. Gaman, by means of registered sale-deed dated 15- 5-1972 for a sum of Rs,28,000. Late Ghulam Muhammad/predecessor-ininterest of the appellants instituted a suit for pre-empting the above sale on the basis of his superior right of pre-emption as being the brother of Mst. Gaman/vendor. It was further alleged in the plaint that the suit land was in fact sold for a sum of Rs,14,000 which was its market price and Rs,28,000 were embodied in the registered sale deed in order to injure his pre-emption right. The suit was contested. Various factual as well as legal pleas were raised including that of estoppel. It was contended that Ghulam Muhammad had in fact facilitated negotiations of sale transaction from inception to finish and had undertaken not to file the suit for pre-emption.
3. On divergent pleadings of the parties the necessary issues were framed. Upon examination of evidence adduced by the parties, the learned trial Judge decided all the issues except issue No,4 in favour of pre-emptor. Issue No,4, however, was decided against the appellant and it was held that the pre-emptor had participated in the negotiations of sale transaction between the respondents and Mst. Gaman from start to finish, was present before the Sub-Registrar at time of registration of the sale-deed and was, therefore, precluded by his conduct to exercise his superior right of pre- emption. On appeal the learned first appellate Court did not agree with the findings of the trial Judge on issue No,4, found that the evidence produced by the respondent was not sufficient in quality and quantity to prove the plea of estoppel. In view of this finding, the learned appellate Court, set aside the findings of the trial Judge on issue No,4, decreed the suit subject to the condition of making payment of preemption money on or before 8-2-1976.
4. Feeling ,dissatisfied with this decision, the respondents filed R.SA No, 17/77 which was accepted by my brother Malik Muhammad Qayyum, J vide decision dated 12-2-1989. It was held that the appellate Court had decided issue No,4 without taking into consideration the evidence adduced by the respondents and so had committed a material illegality within the terms of section 100 of C.P.C.
On this conclusion this Court set aside the judgment and decree passed by the appellate Court and remanded the case to it for decision afresh after hearing the parties and in accordance with law. Pursuant to this order of remand, the learned first appellate Court re-assessed the evidence of issue No,4 and came to the conclusion that the plaintiff/pre-emptor had been instrumental in negotiations of sales from commencement to end and had lent his services in getting the sale transaction registered on behalf of Mst. Gaman/her sister. On these conclusions the learned appellate Court found that the plaintiff/pre-emptor was precluded by his conduct to institute the suit on the ground of doctrine of estoppel by conduct. The learned first appellate Court, furthermore, found that as the suit filed by Ghulam Muhammad had not been decreed before the crucial date set down in Said Kamal's case, now the Court had no jurisdiction to decree the suit. On these findings, the learned first appellate Court dismissed the appeal.
5. Although neither the appellants nor their learned counsel entered appearance yet I felt that the case was pretty old one and needed to be decided instead of adjourning it. I, therefore, called upon the learned counsel for the respondent to address the Court on merits of the case. He, accordingly, agreed to do so and performed his duty with remarkable industry, labour and devotion to professional ethics.
6. Learned counsel, at the very outset, submitted that the suit filed by late Ghulam Muhammad was decreed by the appellate Court on 8-2-1976 much before the target date set down in Said Kamal's case and so the Court was fully competent to decide the appeal on merits in view of Sardar Ali's case PLD 1988 S.C.
287. On the basis of this contention it was suggested that the part of the impugned judgment pertaining to the applicability of Said Kamal's case was legally unsustainable. He however vigorously supported the impugned decision by raising preliminary objection to maintainability of the appeal by saying that concurrent conclusion of fact on Issue No,4 was supported by material on record and was not liable to interference by this Court under section 100 C.P.C. Contiuning further, the learned counsel contended that late Ghulam Muhammad was a real brother of Mst.
Gaman/Vendor, had facilitated the sale transaction from beginning to end; that he participated in the proceedings of registration of sale-deed before Sub-Registrar. From these events, according to learned counsel, it was clear that he had relinquished his right of prior purchase as alleged by respondents. He further argued that the two Courts below had rightly relied upon D.W.1 Ghulam Muhammad and D.W.2 Shah Muhammad and D.W.3 Faqir Muhammad to conclude that plea of estoppel was proved by overwhelming evidence. Reliance was placed upon Naseer Ahmad v.
Arshad Ahmad PLD 1984 .The approach of the learned appellate court was wholly incorrect S.C.
403.
7. I have heard the learned counsel for the respondents at considerable length and perused the material available on record with care. From the survey of the evidence, it is clear that history of the case is almost verigated. The fortunes of parties had been fluctuating. In the first round of litigation the learned first Court decided issue No,4 against pre-emptor and dismissed the suit. On appeal issue No,4 was decided in favour of pre-emptor and the suit was decreed. On appeal, this Court remanded the case back to appellate Court for decision of appeal filed by pre-emptor on merits after assessing the entire evidence of the parties on issue No,4. Parsuant to this, the learned first appellate Court held that evidence of respondent was sufficient in quality and quantity to prove the plea of estoppel. The learned appellate Court relied upon Naseer Ahmad v. Arshad Ahmad PLD 1984 S.C.403, in coming to conclusions.
8. This case came up for consideration, in Jam Palo v. Bashir Ahmad and another PLD 1993 Lahore
168. After the review of the case-law specially Naseer Ahmad's case (supra) his Lordship Mr. Justice Muhammad Afzal Lone, while speaking for the Bench approved the decision laid down in Baqri's case in following words: "(i) Right of pre-emption arises on sale of property in question. This is the general law.
(ii) 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.
(iii) 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."
' From the perusal of the finding of learned appellate Court it is quite clear that while assessing the evidence of the parties the learned appellate Court had kept in view the rule laid down Naseer Ahmad v. Arshad Ahmad PLD 1984 S.C.
403. Law as he was required to evaluate the evidence of the parties in the light of dictum laid down by Supreme Court in Jam Pari v. Muhammad Abdullah 1992 SCMR 786. This precedent by Supreme Court was binding upon the Courts below under Article 185 of the Constitution being latest judgment. Confronted with this situation I have decided to reassess the evidence of the parties in the light of Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and decide the suit instead of remanding it back to first appellate Court. The question for decision is whether this sufficient is adequate to establish the plea of estoppel. No doubt it is duty of the vendee respondent to prove the allegation of relinquishment of superior right of pre-emption by means of unimpeachable evidence, that it is not to be readily inferred, the evidence of D.W.1, D.W.2 and D.W.3 does not conform to test laid down in Jam Pari v. Muhammad Abdullah 1992 SCMR 786. It is an evidence that late Ghulam Muhammad and his sister were living separately in different revenue estates at the time of negotiation .Of sale transaction. It is also in evidence that Mst. Gaman had initiated sale transaction in presence of her husband and had got deed registered in his presence and on these circumstances, the allegation of participation of Ghulam Muhammad in negotiation of sale as well as before registration becomes wholly improbable. Had this been the correct position there would have been no necessity for Mst. Gaman to associate her husband in these proceedings.
Furthermore it is clear that the evidence of D.W.1, D.W.2 and D.W.3 is mutually inconsistent and does not exude confidence. D.W.1 stated that Sub-Registrar had secured the thumb impression of Ghulam Muhammad on questioned sale deed while D.W3 Faqir Muhammad stated that neither his signs nor any writing was obtained from him. On these circumstances the two Courts below were not correct in coming to conclusion that the late Ghulam Muhammad had relinquished his right on the premises of his active participation in the negotiation of sale from inception to finish. The conclusions arrived at by the two Courts below, in my estimation are contrary to rule laid down in Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and contrary to material available on record.
' As a result of above discussion, this R.SA succeeds, the judgment and decree passed by the learned first appellate Court dated 4-9-89 and judgment and decree passed by the learned Civil Judge dated 30-4-76 are hereby set aside. The suit filed by Ghulam Muhammad is hereby decreed subject to condition of payment of pre-emption money (including the Zari-Punjam, if any) within two months commencing from this order. In default the suit filed by Ghulam Muhammad shall stand dismissed. As neither the appellant himself nor his counsel had entered appearance, the office shall inform appellants about this order without any loss or time. There shall be no order as to costs.