' This appeal is directed against the judgment and decree passed by the District Judge, Kotli, on July 26, 1994, whereby an appeal filed by the plaintiff- respondent against the judgment and decree of the Sub-Judge, Nakyal, was accepted.
2. The necessary facts of the case are that a suit for possession on the basis of prior right of purchase with regard to the suit land was filed by the plaintiff-respondent, in the Court of Sub- Judge, Fatehpur-Nakyal. On appearance of the defendants and filing of their written statement, the following issues were framed on the basis of the pleadings of the parties:- {{URDU TEXT}} ' After conclusion of the trial, the learned trial Judge dismissed the suit deciding the issues of Waivers Nos.4 and 5, in favour of the defendant-appellants. An appeal filed by the plaintiff- respondent in the Court of District Judge, was accepted and the requisite decree was passed in his favour. This appeal has been filed to challenge the aforesaid judgment and decree.
3. Syed Khalil Ahmed Bukhari, the learned counsel for the appellants maintained that the defendants had proved the case of ,waiver by bringing the evidence on record. It was also argued that an improvement of Rs,20,000 was made by the defendant-appellants on the suit land. The learned counsel also argued that the prior right of purchase of the plaintiff-respondent was not proved by any record. The learned counsel referred to 1982 CLC 1348 and two unreported cases titled "Muhammad Malik v. Muhammad Shafi and others" and "Pola Khan and another v. Barkat Ali and others" decided by the High Court and Supreme Court of Azad Jammu and Kashmir, on December 12, 1993 and May 31, 1988 respectively, in support of his assertions. On the other hand, Sardar Ghulam Mustafa, the learned counsel for the respondent opposed the contentions raised by the learned counsel for the appellants, on the following grounds:---
(i) that the issue of prior right of purchase was decided in favour of the plaintiff-respondent by the trial Court, for which the defendant-appellants did not file any appeal or the cross-objections in the appeal filed by the plaintiff-respondent, in the Court of District Judge, as such, it was, argued, the appellants are debarred to raise the above point;
(ii) that similarly, issue of improvement claimed by the defendant-appellants was decided against them for which also no appeal or cross-objections were filed;
(iii) that the plaintiff-respondent was not given any notice by the vendor required under the statutory law;
(iv) that the oral evidence brought on record by the defendant-appellants in support of waiver, was interested, contradictory and did not confer any confidence. The learned counsel referred to PLD 1994 SC (AJ&K) 26.
4. I have heard the learned counsel for the parties and also gone through the record, with cam. In the first instance, it is essential to examine what waiver means. The proposition of word "waiver" came under consideration in Ali Haider's case PLD 1983 SC (AJ&K) 5 wherein it was observed:--- "Waiver, precisely means 'to abandon or relinquish', a known vested right by and express declaration or by conduct."
' A similar proposition attracted the attention of the learned Judges of the Indian Supreme Court in Manak Lal's case PLD 1957 SC (Ind.) 346 wherein the learned Judges described the 'waiver' as under:--- "Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his right and that being so he neglects to enforce them; or chooses one benefit instead of another either, but not both, of which he might claim. Waiver, therefore, cannot always and in every case be inferred merely from the failure of the party or to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question."
It implies that at the time of alleged waiver, the right of pre-emption must exist and that the pre- emptor should be shown to have abandoned or relinquished such right knowingly, by his conduct, a part from sections 18 and 19 of the right of Prior Purchase Act, dealing with the statutory waiver, as such the preemptor may be estopped from claiming his right of prior purchase on account of his other acts, such as clear refusal to purchase or agreeing to forego his claim.
5. It may be stated that the waiver can be pressed against the pre-emptor under the statutory provisions sections 18 and 19 of the Right of Prior Purchase Act. The relevant above sections are usefully reproduced:--- "18. Notice to persons having right of prior purchase.---When any person proposes to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property, or urban immovable property, in respect of which any persons have a right of prior purchase, he may give notice to sell such land or property, or of the amount due in respect of the mortgage, as the case may be.
' Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property is situate and shall be deemed sufficiently given if it is served in accordance with the provisions of Order V of the Code of Civil Procedure.
19. Notice by a person claiming right of prior purchase to vendor.---The prior right of any person shall be extinguished unless such person shall within the period of three months from the date on which notice under section 18 is duly given and served, or within such further period not exceeding one year from the date, as the Court may allow, present to the Court a notice for service on the vendor or mortgagee of his intention to enforce his right of prior purchase. Such notice shall state whether the person intending to exercise the right accepts the price or amount due on the footing of the mortgage as correct or not, and if not, what sum he is willing to pay.
' When the Court is satisfied that the said notice has been duly served on the vendor or mortgagee the proceeding shall be filed."
' Section 18 provides a notice by the vendor to the person having the right of pre-emption through the Court having territorial jurisdiction in the matter, containing the price of the property desired to be sold. Section 19 lays down that the person having the right of pre-emption to whom notice is given, have to answer such notice within a period of 3 months of such notice or further extended period as may be allowed by the Court but within one year from the date of notice. On the assumption of the above provisions, if it is positively proved that the pre-emptor abandoned or relinquished his prior right of purchase by refusing to purchase the property under sale, such pre- emptor is estopped from exercising the right of pre-emption. On this premises, the objection of waiver is suitably invoked against the pre-emptor. The reliance in this regard is placed on PLD 1994 SC (AJ&K) 26, wherein it was laid down:- "Section 18 of Azad Jammu and Kashmir Right of Prior Purchase Act postulates notice by vendor to the persons having the right of preemption containing the particulars of the property desired to be sold or the amount due in respect of the mortgage, as the case may be.
' Such notice is given through the Court having the territorial jurisdiction in the matter. Section 19 lays down that persons having the right of pre-emption to whom a notice under section 18 is given, have to answer such notice within a period of three months of such notice or further extended period as may be allowed by the Court but within one year from the date of notice, as to whether they accept the price or the amount due on the footing of the mortgage as correct and is willing to pay the same or not. In case of notice contemplated under section 18 and answer to it under section 19, the controversy between pre-emptor and vendor or vendee is settled family. On the assumption of the provisions of sections 18 and 19, if it is positively proved that the pre-emptor abandoned or relinquished his prior right of purchase by refusing to purchase the property under sale, such a pre-emptor is estopped from exercising his right of pre-emption. On this premises an objection of waiver is suitably invoked against a pre-emptor."
6. Taking into consideration the law on the subject, the evidence brought on record before the trial Court was critically examined and the following points arose out of the evidence:
(i) That no notice was issued by the vendor to the pre-emptor;
(ii) that the statements of witnesses produced by the defendant-appellants in support of waiver were contradictory who were closely related to the vendee;
(iii) that after going through the oral statements made by the witnesses of the defendant- appellants, the impact of refusal to purchase the suit land by the pre-emptor was not found;
(iv) that the evidence brought on record lacked the requirements and strict and strong proof required for the waiver; and
(v) that the detailed appreciation of evidence was made by the District Judge, reaching the conclusion that no waiver was constituted.
7. On detailed scrutiny by going through the evidence and features mentioned above, I also reached to the same conclusion arrived at by the District Judge. That waiver in the instant case was not proved.
8. Now, I proceed to resolve the other points raised by the learned counsel for the appellants. It was argued that the prior right of purchase of the plaintiff-respondent was not proved by any record and also advanced that the matter of improvement of Rs,20,000 made by the defendant- appellants on the suit land, was not properly considered by the Courts below. It may be mentioned that the issue of right of prior purchase was decided in favour of the plaintiff-respondent and the issue of improvement was decided against the defendant-appellants by the trial Court. The defendant-appellants neither filed any appeal nor any cross-objections in the appeal filed by the plaintiff-respondent before the District Judge. Under Rule 22 of Order 41, C.P.C., any aggrieved party who was, respondent and did not file an appeal, could support the decree on any of the grounds decided against him, but he could attack the decree provided he either filed an appeal or cross- objections within the stipulated period provided under the above rule. The appellants neither filed an appeal nor cross-objections in the appeal so filed by the plaintiff-respondent before the District Judge. The appellants also failed to agitate these points before that Court. In the circumstances, the appellants are debarred to raise the above points before this Court. Reliance is placed on the case titled "Khairati and others v. Aleemuddin and another PLD 1973 SC 295, wherein it was observed:--- "Civil Procedure Code (V of 1908), O.XLI, R.22---Respondent in appeal can support a decree even on points against him but cannot attack a decree or ask for its variation without a cross-objection."
9. In view of the above discussion, it is concluded that the appellants have failed to substantiate their case, as such finding no merit in appeal, the same is dismissed.