' This appeal has been directed against the judgment and decree of the District Judge, Kotli, passed on September 5, 1994, whereby an appeal filed against the order of Sub-Judge, Fatehpur Thakyala, was dismissed.
2. The facts forming the background of this appeal are that two suits, one by Ghulam Rasool, plaintiff-appellant and the other by Noor Muhammad son of Kala, on the basis of right of prior purchase were filed in the Court of Sub-Judge, Fatehpur Thakyala. Both the suits were consolidated and issues arising out of the pleadings of the parties were framed. The trial Court after receiving evidence from the respective parties and hearing them dismissed both the suits. The plaintiff- appellant, Ghulam Rasool filed an appeal before the District Judge while the other pre-emptor did not prefer any appeal. The appeal of the plaintiff-appellant did not find favour with the learned District Judge, as such was dismissed. The aforesaid order is the subject of challenge through this appeal.
3. Malik Muhammad Yusuf Khan, the learned counsel for the appellant raised the following points; in support of the appeal:--
(i) That it is an admitted fact that the appellant has a prior right of purchase, as such is entitled to the requisite decree;
(ii) that the observation of the trial Court as well as that of the first Appellate Court with regard to the constitution of waiver against the appellant is not maintainable for the following further reasons:--
(a) That there is no convincing evidence on the record which may prove the factum of waiver;
(b) that on agreement placed on record by the vendee-respondent does not prove the fact of any waiver on the side of the appellant. It was explained that all the witnesses produced by the vendee stated that a sum of Rs,10,000 was paid to the plaintiff-appellant for not filing the suit. The fact was not found in the agreement; and
(c) that there was no occasion for recording the statement of plaintiff-appellant on, an application moved on behalf of the vendee-respondent, for the Special Oath, particularly when the appellant had refused to take such oath.
4. On the other hand, Ch. Muhammad Yusuf and Raja Javed Akhtar, the learned counsel appearing for the opposite side, addressed the following arguments while controverting the arguments advanced by the learned counsel for the appellant:--
(i) That the plaintiff-appellant was estopped from filing any pre-emption suit as he was a party in the sale proceedings and had received Rs,10,000 from the vendee, respondent and executed an agreement, thus, a waiver was constituted against him;
(ii) that the vendee-respondent moved an application before the trial Court for the plaintiff- appellant to take a Special Oath on Holy Qur'an as if he did not receive a sum of Rs,10,000 for abstaining from filing the preemption suit, on which plaintiff-appellant got his statement recorded before the Court, admitting to have received Rs,10,000 from him; and
(iii) that both the Courts below concurrently decided the matter against the plaintiff-appellant and no illegality or mis-reading or non-reading of evidence was pointed out by the appellant. In the circumstances, the appeal is not maintainable.
5. I have heard the learned Counsel for the parties and also gone through the record carefully.
6. It is firstly to be seen as to what ' waiver' means. The dictionary meaning of word 'waiver' is "to abandon, relinquish, desert, to relinquish (a right claimed 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".
6-A. The definition of word "waiver" came under consideration before the learned Judges of the Supreme Court of Azad Jammu and Kashmir in Ali Haider Khan v Sher Afzal Khan (PLD 1983 SC (AJ&K) 5), wherein it was held as under:-- "---' waiver', precisely means 'to abandon or relinquish, a known vested right by an express declaration or by conduct."
A. Similar proposition attracted the attention of the Supreme Court of India in PLD 1957 SC (Ind.)
346. The "waiver" was described as under :-- "Waiver or acquiescence, like election presupposes that the person to be bound is fully cognizant of this 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."
7. Keeping in view the law discussed in the aforesaid authorities, it can be stated that although no hard and fast rule can be laid down as to what constitutes the waiver by conduct in relation to pre- emptible sale and every case has to be decided in the light of its peculiar facts. The general test laid down is 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 affirmative, the preemptor must fail but if it is in the negative, he must obviously succeed. It may also be stated that at the time of alleged waiver, the right of pre-emption must exist and pre-emptor should be shown to have abandoned or relinquished such right knowingly. An act or omission of a pre-emptor prior to the transaction of the sale, is not deemed sufficient to deprive him of his superior right which, in fact, accrued at the time of completion of the sale. Likewise, it was necessary to prove that the pre- emptor was alive to his right and in that state of circumstances, by his conduct, he waived his right.
Sections 18 and 19 of the Right of Prior Purchase Act deal with the statutory waiver but a pre-emptor 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. In order that a plea of waiver may succeed, it should be proved that the right of preemption, if already vested, was extinguished by some act of person to whom it belonged or before it actually arose on the execution of the sale- deed. Thus, in one case, it would amount to relinquishment of the right and in the other, to a representation express or implied that he would not enforce it.
8. In the present case, the vendee-respondent categorically raised the relevant objection in the written statement, consequently an issue was framed. While discharging the burden of issue, the vendee-respondent produced the oral evidence in addition to an agreement brought on record in support of the plea. During the pendency of the proceedings before the trial Court, an application on behalf of the vendee-respondent was moved for plaintiff-appellant to take a special oath on Holy Qur'an as to the fact that he has not received Rs,10,000 for abstaining from filing any pre- emption suit. The plaintiff-appellant got his statement recorded in which it was admitted that he received Rs,10,000 and was prepared to return the same. The oral evidence brought on record by the vendee-respondent proved the fact that the appellant received Rs,10,000 in a 'Panchayat' wherein an agreement was also executed. The plaintiff-appellant never entered into witness-box to rebut the aforesaid assertion and admitted the fact of receiving the relevant amount at the time of recording his statement on an application moved for special oath. The accumulative effect of all the facts appearing constitutes a strong waiver against the plaintiff-appellant.
9. It may also be mentioned that both the Courts below concurrently decided this issue against the plaintiff-appellant. I have critically examined the orders of the Courts below and also gone through the relevant evidence and am of the view that the conclusion arrived at by the Courts below does not warrant any interference as the orders have been recorded after due appreciation of the facts.
This Court normally does not interfere unless some illegality or misreading or non-reading of evidence is noticed which is not found in the C present case. Reliance in this regard may also be placed on PLD 1981 SC (AJ&K) 124, wherein it was observed as under:-- "---it would thus appear that unless some procedural defect, such as non-reading of evidence, misreading of evidence or travesty of the finding is not established, a finding of fact cannot be allowed to be discharged by the High Court. In the instant case, no such defect could be noticed."
10. It was also observed in Salah Muhammad Khan's case (1981 CLC 353) as under:-- "A finding of fact, it is now settled law, cannot be disturbed in second appeal unless it can be shown that the evidence was misread or the finding is based on surmises and conjectures. Erroneous finding of fact, however, inexcusable it may be, cannot be disturbed in second appeal unless there is some 'defect in the procedure' causing error in the decision of the case on the merits. Mr. Justice Munir with whom we concur on the point in Nadir Shah v. Lal Shah (PLD 1954 Lah.447) after referring to the leading authorities of the Privy Council on this subject came to the conclusion that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits."
11. In view of the above discussion, the appeal is found to have no substance in it which is hereby dismissed with no order as to costs.