' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This appeal under Article 185 (2)(e) of the Constitution of Islamic Republic of Pakistan, 1973, is from an order of a learned Single Judge of Lahore High Court, Bahawalpur Bench, Bahawalpur, accepting a Second Appeal.
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6. The appeal arose out of a suit filed by the appellant to pre-empt a sale of some 120 Canals 3 Marla's of land in favors of the two respondents by virtue of a registered sale-deed dated 14-7-1977.
The appellant claimed a superior right of pre-emption on the basis of his collateral ship with the vendor and his co-ownership in the Kata out of which the land in dispute had been sold. The claim for pre-emption was resisted, inter alia, on the ground that the appellant had not only initiated the sale but had also participated in the sale of the land in dispute made in favors of the respondents.
7. The trial. Court found that the appellant being real brother of the vendor whereas the vendees were not possessed of any such qualification and, therefore, the former had a superior right of pre- emption. The trial Court further held that the appellant was not estopped from asserting that right by reason of his presence in the sale transaction and, in consequence, decreed the suit. This finding of fact was upheld in appeal by a learned Additional District Judge, Rahimyar Khan. On second appeal, however, a learned Judge in Chambers of the High Court, reversed the decree passed by the trial Court and affirmed by the First Appellate Court. In this context, the reasons that found favour with the learned Single Judge of the High Court are to be found in his order which are as follows:-- "It was not a case of mere presence of the respondent as assumed by the trial Court whereas D.W.3 was specific that it was the respondent who got the bargain settled. He is 'real brother of the vendor, therefore, an ordinary prudent man like the appellants who are females could very well gain an impression and understanding that he would not pre-empt the property as had he been interested to purchase it he would have purchased the land himself which was being sold by his real brother. There was no evidence on the record that relations between the two brothers were strained to presume as observed by the trial Court that the vendor might not have chosen to sell the property to the respondent. Due to his this conduct which amounted to representation in my view to the appellants that they could purchase the land without fear of danger of it being pre- empted they purchased the same would amount that they had altered the position, for, had there been any indication from the respondent that he was interested to purchase the land they would not have gone into this bargain to save them from litigation. The subsequent conduct also supports this findings, for, the suit was filed at the fag-end of period of limitation. The Court cannot ignore that the general tendency is that the owners whenever they feel financial strains sell the land and after the difficult time was over, get the suit for preemption filed by their relatives on the last days of limitation which requires deposit of only 1/5th and got back the land through after several years when the value of the same had gone much higher. I am persuaded to raise this inference very safely in this case as the sale was made by the real brother of the respondent who himself actively participated in it and it was a device to take back the land that the suit for pre- emption was got filed."
' The law laid down by this Court in the case of Jam Pari v. Muhammad Abdullah (1992 SCM R 786) on the point of wavier was held not applicable to the case in hand saying that "a case of waiver of the right of pre-emption had not been established as per criteria laid down in this judgment".
4. Mr. A.R. Shaukat, learned Senior Advocate appearing on behalf of the appellant, has contended that the mere presence of the pre-emptor at the time of sale, even if it was conceded, was not by itself sufficient to amount to waiver of the right of pre-emption. It was next submitted that, in any case, merely because another view could be taken on re-appraisal of evidence on the plea of estoppel or waiver would be no ground to interfere in second appeal. In this context, reliance was placed, inter alia, on cases of (i) Abdul Majid and others v. Khalil Ahmad (PLD 1955 FC 38), (ii)
Muhammad Shafi and another v. Sher Ali (1970 SCM R 510) and fill) Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403).
5. On behalf of the respondents, evidence had been led to show that the appellant was present at the time of the sale transaction. In his cross-examination, Umar Hayat (P.W. 4) had owned the suggestion that "Rasheed (appellant) was present." Shaikh Muhammad Salim (D.W.3) appearing as Special Attorney of the respondents, inter alia, stated that the appellant had participated in striking the bargain of the disputed land. In his cross-examination, the Special Attorney had conceded, firstly, that he was neither present at the time of bargain nor at the time of registration of the sale deed. The assertion of the Special Attorney of the vendees-respondents as aforesaid was not worthy of reliance, firstly, because being the son and brother of the respondents respectively he was an interested witness and, secondly, that on his own showing he was not present at the crucial stages of the sale transaction, therefore, he could not have been so assertive qua the presence of the appellant to urge that the latter had participated in the sale transaction.
At the most what it really established is that the appellant was present at the time of the sale and nothing more. The law is, however, by now settled that mere presence of the pre-emptor in a meeting where bargain was struck would not constitute estoppel against him. In this respect, reference may be made to the law laid down by .This Court in the cases of: (i) Abdul Majid and others and (ii) Naseer Ahmad supra. The learned Single Judge was, therefore, clearly in error of misreading of evidence to hold that "Shaikh Muhammad Salim (D.W.3) Special Attorney of the respondents-vendees was specific that it was the appellant herein who got the bargain settled" or that the appellate being the real brother of the vendor prompted the females respondents "to gain the impression and understanding that he would not pre-empt the property as had he been interested to purchase it he would have purchased the land himself which was being sold by his real brother". This inference was drawn merely because, according to the learned Judge, "there was no evidence on the record that relations between the two brothers were strained to presume, as observed by the trial Court, that vendor might not have chosen to sell the property to the respondents". This assumption, to say the least, besides being conjectural, was absolutely unwarranted. Again this unfounded assumption was sought to be strengthened by what has been taken by the learned Judge to be the subsequent "conduct of filing the suit at the fag-end of period of limitation". With utmost respect, this inference is also farfetched, in that, usually the filing of the suit with delay is not merely due to "the general tendency that whenever owners feel financial constraints sell the land and after the difficult time was ever got the suit for pre-emption filed by their relatives on the last days of limitation which requires .Deposit of only 1/5th and get back the land through pre-emption after several years when the value of the same had gone much higher".
The hollowness of the inference with due deference to the learned Judge is too obvious to need any further comments. Such observations could have been valid only when there had been a plea of benami' suit for pre-emption. In the absence of any plea of the nature, the learned Judge should not have been persuaded to non-suit the appellant. Again the learned Judge had not correctly drawn the ratio from the reported case of Jam Pari v. Muhammad Abdullah (1992 SCM R 786). The report does not merely highlight the criteria for the application of doctrine of waiver in a preemption mater but applying that criteria it was ruled by this Court that the presence of plaintiff at the time when the bargain was struck was not enough to draw an inference of acquiescence in sale. We are, therefore, of the considered view that the learned Judge had erred in upsetting the concurrent findings of fact that the appellant was not proved by his any conduct to have been either estopped or had been guilty of waiver.
6. Again we are inclined to agree with the proposition raised on behalf of the appellant that from the perusal of the grounds mentioned in section 100 of Civil Procedure Code, 1908, a second appeal does not lie on the ground of an' error on question of fact. It only lies on the ground of error of law, or, an error in the procedure', which may have affected the decision of the case upon the merits. In the case of Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) this Court had specified the following grounds on which a second appeal is permissible under section 100:-
(i) The decision being contrary to law.
(ii) The decision being contrary to usage having force of law.
(iii) Failure to determine some material issue of law.
(iv) Substantial error or defect in the procedure provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon merits.
Applying this test, we are of the considered view that the decision rendered by the two Courts below was based on judicial consideration of evidence adduced in the case. On the contrary, the decision arrived at by the two Courts below was not shown to be either based on irrelevant or inadmissible evidence or further that the evidence had, in any way, been mis-read by them. It is thus clear that the High Court in second appeal had wrongly interfered with the concurrent findings of .Fact simply because some other view point could also be taken. This view of the High Court is not in accord with the decision of this Court in (i) Pathana v. Mst. Wasai (PLD 1965 SC 134), (ii) Khera Din v. Fazal Din (1968 SCM R 1027) and (iii) Azhar Saleem v. Muhammad Anwar .Khan (1974 SCM R 484) besides Abdul Majid's and Naseer Ahmad's cases supra.
7. For the foregoing reasons, this appeal is accepted, the impugned order of the learned Single Judge of Lahore High Court dated 13-2-1993 passed in second appeal is set aside and that of the learned Additional District Judge dated 28-1-1987 is restored. The parties are, however, left to bear their own costs.