This appeal is directed against the judgment and decree passed on 30th April, 1994 by District Judge, Poonch-Rawalakot, whereby while maintaining the findings arrived at on 28th September, 1993, by Sub-Judge, Rawalakot on Issue No.5, the suit of the plaintiff-appellant was dismissed.
2. The facts forming background of the present controversy, briefly stated are that Muhammad Ashraf Khan respondent No.7, transferred suit land comprising survey Nos.321-min, 641 and 326- min, situate in Village Dothan, Tehsil Rawalakot, District Poonch to respondents Nos. l to 6 through a sale-deed executed on 2nd November, 1986. The plaintiff-appellant brought a suit in the Court of Additional Sub-Judge, Rawalakot on 15th July, 1990.
3. The defendants-respondents filed their written statement in the suit wherein they, while repudiating the averments made in the plaint, contended that plaintiff-appellant had no preferential right of purchase as compared to them. It was further pleaded that the vendor had asked the plaintiff-appellant to buy the land. But he refused, there after the vendees purchased the land with the consent of the plaintiff-appellant. The trial Court framed as many as six issues, including the one for relief and after recording the evidence of the parties for and against their respective claims, ultimately dismissed the suit of the plaintiff-appellant mainly on the ground of waiver. This finding was assailed in appeal before the District Judge who dismissed the same vide impugned judgment and decree. Hence the present appeal.
4. Lengthy arguments have been addressed by the learned counsel for the parties.
5. The learned Courts below applied the principle of waiver against the plaintiff-appellant on the ground that he had admitted in his Court testimony that he had a dispute with Abdul Aziz defendant on account of which reason, he exercised the right of prior purchase. If Abdul Aziz had taken no quarrel with him, then in that case, he would have not filed the suit. The learned Courts below observed that plaintiff-appellant had, in fact given his consent to the sale as pleaded by the defendants-vendees. He has filed the suit just to. Take revenge from Abdul Aziz, defendant.
6. The plaintiff-appellant, in his suit, has exercised his right of prior purchase on the ground of contiguity and has claimed that land was transferred at his back without his knowledge whereas the respondents have denied his right of prior purchase and have asserted that firstly he had no right of prior purchase and ultimately, if he had any right, he had waived the same by refusing to buy the suit land and by his consent in the bargain between the vendor and vendees.
7. The question for decision in this case is as to whether in the circumstance of this case, the statement made by the pre-emptor-appellant implies a promise by him, not to exercise, his pre- emptive right, or prejudice that right in any way.
8. The learned counsel for the plaintiff-appellant argued that respondents have denied the preferential right of the plaintiff-appellant as such there was no occasion for them to seek his consent. According to the learned counsel, the right can be waived only if it is proved that the pre- emptor, either by his words or action, prior to sale or at the time of sale, has given any consent in favour of the transfer of the land from the vendor to the vendees or has refused the offer of the vendor to purchase the land. He further emphasized that it is an admitted fact that the notice, as postulated under section 18 of the Right of Prior Purchase Act, as enforced in Azad Jammu and Kashmir, was not given to him. Therefore, the statutory requirements in this case were not fulfilled, on the basis of which it could be claimed that the land was offered to him by the vendor having authority to sell it, prior tc the execution of the sale-deed in question. According to him, therefore, principle of waiver was applied against his client by the Courts below without any legal justification.
He relied on PLD 1957. SC (Ind.) 346, PLD 1962 Peshawar 14, PLD 1974 Note 96 at page 146 and PLD 1983 A'zad J&K 5. In all these authorities the principle of waiver and its application has been discussed in detail. .
9. While repudiating the arguments of the learned counsel for the appellant, the learned counsel for the respondents argued that the suit based on pre-emption has been filed to take revenge from Abdul Aziz vendee, with whom the plaintiff-appellant had a dispute over another piece of land. In this view of the matter, the suit was rightly dismissed by the Courts below in the light of the statement of the plaintiff-appellant.
10. I have given my thought to the respective arguments submitted by the learned counsel for the parties and gone through the record.
11. The principle of waiver has attracted the attention of superior judiciary of sub-continent time and again. The right of pre-emption is provided by statute, therefore, even though no hard and fast rule has been laid down in respect of conduct of the plaintiff, on the basis of which the requisite decree can be refused to him. However, where it was proved through convincing evidence that plaintiff had undertaken not to exercise his superior right of purchase or had acted in a manner which was entirely inconsistent with an intention to exercise the statutory right of pre-emption or where it was proved that he induced the vendees to enter upon the sale, the Courts have disentitled the plaintiff from the decree on the right of pre-emption. '
12. Before proceeding further it appears necessary to discuss the judgment of our own Supreme Court (PLD- 1983 SC 5), in which all other judgments relied by the counsel for the appellant have been discussed. The learned Judges of the Supreme Court of Azad Kashmir have also examined the word "waiver" from all aspects. Reliance can be made on paras. 7, 8, 9 and 10 from this judgment which run as under:---
7. First we examine as to what waiver is ? The dictionary meaning of word 'waiver' is 'To abandon, relinquish, desert, forsake To relinquish (a right, claim, or contention) either by express declaration or by some intentional act which by law is equivalent to this'. In Law Terms and Phrases, 'waiver' is described 'forsaking the assertion 'of a right act, at the proper time. An intentional relinquishment of a right a man is entitled to. The word 'waiver' means to 'Forego; to waive a claim or right, or not to put forward the claim or right'.
8. The definition of word 'waiver' attracted the attention of the learned Judges in Manak Lal's case.
The relevant part of the observation is reproduced:--- "Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, 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 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."
9. The proposition was raised in Mustaqim v. Sher Bahadur' where in a pre-emption case, the learned Judge, on examining the case-law on the point, described "waiver" as under:--- "Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right. "
10.In Mohibullah's case while deliberating over the propositions relevant to the waiver the learned Judges applying the test laid down in AIR 1915 All. 51, arrived, at a conclusion:--- "Although no hard and fast rule can be laid down as to what constitutes waiver by conduct in relation to a pre-emptiable sale and consequently every case has to be decided in the light of its peculiar facts, the test laid down in AIR 1915 All. 51 that 'the pre-emptor must have a fair opportunity of purchasing the property' seems to be the heart and soul of the legal problem. If the answer is in the affirmative the pre-emptor must fail but if it is in the negative, he must obviously succeed. "
Waiver, precisely, mean "to abandon or relinquish a known vested right by an express declaration qr by conduct.
Any person who intended to take benefit of waiver, is under an obligation to prove waiver by conclusive proof. "
13. Ultimately, the learned Judges have precisely concluded that waiver means to abandon or relinquish a known vested right by an express declaration or by conduct. .
14. In the present case the vendees have not acknowledged that the plaintiff --appellant had a preferential right of purchase. They have pleaded that the plaintiff had refused to purchase the land and later on, the land was purchased by them with the consent of the plaintiff. The facts so pleaded were not proved as has been held by the trial Court. However, the trial Court as well as the firsts appellate Court had relied upon the statement of the plaintiff in the Court, wherein he has stated that he had a dispute with Abdul Aziz vendee and on the basis of this dispute he filed the suit for pre-emption. This statement has been considered sufficient to attract the principle of statutory waiver against the plaintiff. This fact was not put to the plaintiff-appellant during his cross--examination that he had given assurance to the vendees that he would not object to their purchasing the land in question, or that the defendants were at liberty to make the purchase of the land in dispute. It is not the case of he vendees that the' vendor having authority to sell the land ever offered the land to the plaintiff-- appellant for purchase. It is admitted fact that notice under section 18 of he Right of Prior Purchase Act was not given to the plaintiff-appellant prior to the execution of the sale-deed. In these circumstances, I am satisfied that the act of the plaintiff- appellant admitted by him does pot amount to waiver of his right of pre-emption.
15. The learned District Judge has decided only issue No.5 and has not recorded his findings on other issues. Therefore, in the circumstances, while accepting the appeal with costs and setting aside the judgment and decrees of the Courts below, I am constrained to remand the case to the learned District Judge, Poonch-Rawalakot for his decision afresh on other issues in accordance with law.