Nobody has appeared on behalf of legal heirs of respondent No.l deceased namely Riaz Ahmad, Muhammad Safdar and Zarina Bibi in spite of P.CA.D. having been issued. They are therefore proceeded against ex parte.
2. This is plaintiffs second appeal which has been directed against judgment and decree dated 4- 5-1978 passed by the learned District Judge, Gujranwala through which the appeal filed by the respondents against judgment and decree dated 7-12-1974 passed by the learned trial Court decreeing the suit of the appellant for possession of land through pre-emption was accepted and suit dismissed.
2. The land in dispute which is measuring 24 Kanals 19 Marlas was owned by Mst. Rajan who sold it to respondents through sale-deed dated 3-3-1969 ostensibly for an amount of Rs.6,000.00. The appellant filed a suit to preempt the same on the ground that he being collateral of the vendor and also owner in the estate had superior right of pre-emption. It was pleaded that the land was sold for an amount of Rs.3,000.00 but to defeat his right of pre--emption the same was shown to have been sold for Rs.6,000.00 in the sale--deed.
3. The suit was contested by the present respondents inter alia on the ground that the appellant had waived his right of pre-emption. The learned trial Court framed the following issues: (1)Whether the plaintiff has superior right of pre-emption over the suit land as qua defendants- vendees? OPP.
(2)Whether the plaintiff has waived his right of pre-emption? OPD.
(3)Whether the suit land is not traceable due to consolidation proceedings? OPD.
(4)Whether the sale price of Rs.6,000.00 was fixed in good faith or actually paid as sale price of the suit land? OPD.
(5)If issue No.4 is not proved, what was the market value of the suit land? O.P. P.
(6)Relief.
After recording evidence the learned trial Court answered issues 1, 2 and 3 in favour of the appellant. Issue No.4 was decided against him. Due to finding on issue No.4, having been given against the appellant issue No.5 was not answered. The suit was decreed subject to deposit of an amount of Rs.6,000.00 as consideration through judgment dated 7-12-1974.
4. In appeal filed by the respondents the learned lower appellate Court came to the conclusion under issue No.2 that it was established that the appellant had waived his right of pre-emption therefore the appeal was accepted, judgment and decree of the learned trial Court was set aside and suit dismissed.
5. The question which arises in this appeal for determination is only as to whether document marked `A' which was exhibited by the learned lower appellate Court as Exh.`D' constitutes waiver of right of pre-emption and the execution of the same had been proved through cogent evidence. I have been taken through the evidence produced by the parties. It may be stated at the very outset that the appellant when examined himself as P.W.1 denied the execution of the said document. No case was made out that he put his thumb---impression on this document under undue influence or that he was made to thumb mark the same under misrepresentation or that his thumb- impression was obtained by giving him impression that document of some other nature was being executed for him.
6. In order to prove the execution of the said document the respondents examined Mushtaq Ahmad as D.W.2 who is the scribe of the said documents. He stated that document was got written from him and the appellant put his thumb impression on the same. D.W.3 is the marginal witness of this document. He also stated that the same was thumb-marked by the appellant. No evidence in rebuttal of these two witnesses was produced which evidence was corroborative of each other.
Learned lower appellate Court has rightly observed that there is no reason why these two witnesses should tell a lie and depose against the appellant. The respondent also examined Mumtaz Ali Shah, Finger Print Expert as D.W.1 as the thumb impression of the appellant on this document was sent for comparison with his admitted thumb impression to Finger Print Bureau.
According to the report of the expert witness both the thumb impressions were identical and of the same person. The execution of the said document was therefore, fully established and the finding of the learned lower appellate Court does not suffer from any illegality on account of mis--reading, misconstruction of the evidence. The sale took place on 7-3-1969 and this document was executed on 25-2-1969.
7. The next question which arises is whether the same amounted to waiver of right of pre-emption by the appellant. The learned trial Court was of the opinion that since there was no waiver in favour of the vendee therefore, the writing on the document did not constitute waiver of right of pre- emption. The view taken by the learned lower appellate Court was that the same constituted waiver of right of pre-emption. I have given serious thought and am persuaded to agree with the learned lower appellate Court. According to the contents of this document the vendor offered to the appellant to purchase theland if he so wanted because she was intending to sell the same and the appellant declined to do so, as according to the evidence on the record he stated that he did not have sufficient money to purchase the same. I am convinced that this offer was certainly made to him in recognition of his superior right of pre-emption and he declined to purchase it which would amount to abandonment or waiver of right of preemption. I am fully convinced that it constituted waiver and issue No.2 has been rightly answered by the learned lower appellate Court in favour of the respondents and suit dismissed.
8. The impugned judgment passed by learned lower appellate Court does not suffer from any legal infirmity which is based on evidence 'which has been f elaborately and carefully appraised. There is no scope of taking a different view. The appeal fails which is accordingly dismissed with no order as to costs.