' MUHAMMAD RAFIQ TARAR, J.---This petition for leave to appeal by Abdul Rehman petitioner is directed against the judgment of a learned Single Judge of the Lahore High Court dated 22-3-1993 whereby reversing the finding of the First Appellate Court on issue of waiver, the judgment of the said Court dismissing the pre-emption suit of the respondent was set aside and that of the trial Court decreeing his suit was restored.
2. The case of the petitioner/defendant was that the land in suit was offered for sale to the pre- emptor/respondent but he declined to purchase it on the ground that he had no money and had thus waived his right of preemption. The trial Court after considering the evidence on the issue of waiver observed that the suit land was never offered to the plaintiff nor he knew anything about the bargain, and found the issue against the defendant/petitioner herein. On appeal the learned District Judge reversed the finding holding that the pre-emptor was present at the time of sale of the land in dispute and had refused to purchase it on the plea that he could not arrange for the sale price, therefore, he had waived his right by his own conduct. This finding of the District Judge was reversed by the learned Single Judge in Regular Second Appeal holding that the oral evidence produced in support of the plea of waiver was "of a usual nature and was not much impressive and convincing" and the learned District Judge erroneously felt enamoured of it.
3. The only submission made by the learned counsel for the petitioner is that the High Court failed to appreciate the evidence regarding waiver in its true perspective resulting in miscarriage of justice. It is submitted that interference by the High Court with the Appellate Court's judgment was uncalled for and unwarranted as its finding on the question of waiver was based on cogent reasons.
4. After hearing the learned counsel for the petitioner and having gone through the entire evidence we are of the view that the learned District Judge has delivered a laboured judgment by stretching the evidence in favour of the vendee and the High Court has, on a detailed scrutiny of evidence, upheld the finding of the trial Court on the issue of waiver for valid reasons. The learned Civil Judge has exhaustively dealt with the issue of waiver in para 5 of his judgment which reads as under:- "5. The case of the defendant is that the plaintiff had the full knowledge of the bargain but he did not purchase the suit land. To prove the assertion he has produced 5 witnesses and has himself entered the witness-box. The suit land is situated in village Bothana. The deed of sale was executed in Sahiwal. According to the statement of the defendant as D.W.8 the distance between village Bothana and Sahiwal is about 50 miles. The plaintiff was present in the bargain and he had asked him (plaintiff) to purchase the land in dispute but he replied that he had no money. In the cross- examination the defendant deposes that the land of the brother of the Registry Moharrir of Depalpur is situated in his village. To a suggestion whether it was correct that the deed of registry was not executed in Depalpur lest the plaintiff should get its information he replied in negative. But he explains that it was done because the judicial paper was not available in Depalpur. To a further question whether he had applied for the purchase of Ashtam he also replied in the negative. The defendant then stated that they had not purchased the Ashtam from Depalpur because he could not get money from the Bank from Depalpur. But in the second breath he deposes that he had withdrawn the amount from the Bank the same day and that the deed of sale was written the next day. It is added by him that the plaintiff had told that he had a friend in Sahiwal who was a petition writer and the expenses of registry would be less in Sahiwal and therefore they got the sale-deed executed in Sahiwal instead of at Depalpur. But in the end of his evidence the defendant states that he had himself restrained the plaintiff to sign on the registered deed as a witness (sic) of let the latter might play a fraud upon him, but what fraud could possibly be committed by the plaintiff by witnessing the deed, the defendant has not been able to explain anything when put a question during the arguments to that effect. It will be observed that the evidence of the defendant is self- contradictory as well as most unimpressive. If he had so much doubt about the plaintiff that he could play a foul play even by signing the deed of sale as a marginal witness, how could he advise that the defendant should get the registry executed at Sahiwal and why did the latter act upon his advice that the expenses of registry in Sahiwal would be less. The distance between Bothana and Sahiwal is about 50 or 60 miles and Depalpur is about 8 miles away from the village of the defendant vendee and the bus from Bothana to Sahiwal goes through Depalpur. This is affirmed by Muhammad Shafi D.W.5, the brother of the Registry Moharrar of Depalpur owns land in the village of the defendant. It can, therefore, be safely inferred that had the defendant got the deed of sale registered at Depalpur the information about the sale of the suit land would have reached the plaintiff. Other reasons stated by the defendant for the non-registration of the deed at Depalpur as discussed above are also worthy of no credit. As against it, the plaintiff as P.W.2 has emphatically denied his knowledge about or his participation in the negotiations for the bargain of the land in dispute. There is nothing contradictory in his testimony. He rather stated that the relations of Muhammad Din vendor with him are not good. The other evidence of the defendant on this issue need not be discussed in detail and in view of his own shadowed evidence I hereby hold that the plaintiff knew nothing about the bargain of the suit land and therefore decide the issue against the defendant."
The learned counsel for the petitioner has not been able to point out any misreading, non-reading, or misconstruction. In the circumstance there is no substance in this petition and the same is dismissed.