SAYED NAJAM-UL-HASSAN KAZMJ, J. - This judgment will decide Civil Revision No. 1483/87,. Which brings under challenge judgment dated 25.7.1987 of the learned Additional .District Judge, Kasur.
2. To pre-empt sale of land measuring 37 kanals, 15 marlas, petitioner (Mst. Jamian), filed a suit on the ground of being collateral of the vendor, co-sharer in Khata and owner of land in the village estate. The suit was resisted by respondents who raised the plea of estoppel, incorrect valuation of suit and denied the claim of petitioner on merit.
3. On consideration of evidence, the learned Civil Judge decried the suit vide judgment dated 15.2.1986, subject to payment of Rs.70,000/- as pre-emption money, in appeal, the learned Additional District Judge set aside the decree, on the plea of estoppel.
4. Learned counsel for the petitioner argued that the learned Civil Judge grossly misread and mis- interpreted the evidence on record, ignored the defence, taken in the written statement and also proceeded in total dis-regard to the settled principle of law, which provides that to non-suit a pre- emptor on the plea of estoppel and waiver, one has to prove conscious relinquishment or surrender of rights, it was added that the evidence, led in support of the plea of estoppel, was contradictory to the pleadings and also self-contradictory in itself and that no case was made out even on the basis of the evidence, led. Lastly, it was submitted that the plea of alleged asking the pre-emptor, before the existence of any proposal of sale or in th: absence of any definite price, would not constitute either estoppel or waiver, though in point of fact, even this plea could not be established on record.
5. In reply, it was argued that the sufficient evidence existed on record to show that the petitioner ,had refused to purchase the land and that she could not press for right of pre-emption on account of her conduct. It was contended that the transaction was settled after consulting the petitioner and, therefore, the suit was not maintainable.
6. The sale was pre-empted on the ground of collateralship, ownership in the village estate and on the ground of co-sharer. Findings recorded by the learned Trial Court, were that the petitioner had the superior right of pre-emption, as against the purchaser. The findings as to the superior right of the petitioner were neither seriously challenged in first appeal nor in the course of hearing of this revision. The Appellate Court dismissed the suit by accepting the plea of estoppel. The perusal of operative part of the judgment of the Appellate Court reveals that the learned Additional District Judge, neither considered the evidence in proper perspective nor re-appraised the same and by making a casual and general reference to the evidence, observed that he had perused the evidence and that before the sale in question, announcement to this effect was made in the village, which was allegedly a sufficient notice and also that the witnesses had unanimously stated that the pre-emptor was asked to purchase. Neither the statements were examined minutely nor the same were examined in the light of defence, taken in the written statement. It is also observed that the learned Additional District Judge did not keep in consideration the rule, which governs the question of estoppel and waiver nor he was conscious of the requirement of law, to non-suit the pre-emptor on the ground of estoppel or waiver.
7. In the written statement, respondents alleged that the petitioner was estopped by her on acts and conduct. This plea was raised in para 1 of the preliminary objections while in para 4 on facts, it was alleged that in the village, before the purchase, the petitioner and other people and the knowledge of sale and that the consent of the petitioner was allegedly involved in the settlement of the transaction. In evidence, a different story was introduced. In the first instance, the plea taken in the written statement or attempted to be introduced in defence evidence, was never put to the witnesses of the petitioner. PW-1 Phool Muhammad was not given the suggestion, on the question of estoppel. Instead, surprisingly, a suggestion was given to PW-1 that the suit was instituted as a result of collusion between the Petitioner/plaintiff and the vendor, which was not the case of the respondents in the written statement. Instead, attorney of the vendor was produced as a witness by the respondents, in defence himself. If there had been a collusion between the vendor and the pre-emptor, then the vendor should have appeared as a witness of the petitioner. In this case, the vendor was never produced, for and against the plea of estoppel by the respondents and instead his attorney was introduced to support the plea of estoppel. PW-2 was in respect of Naqsha Paidawar. PW-3 Zafar Din stated that the petitioner had no knowledge of the sale and that the sale was kept hidden from her. He stated that he had informed of the sale to the pre-emptor-petitioner and that he was a tenant of the petitioner. This witness was never suggested that before the transaction, the petitioner came to the village or that she was offered to purchase the property or that she had allegedly refused to purchase. Petitioner herself appeared as PW-4 and specifically deposed that she was not asked before the sale, she was living with her husband in Jhamber, she had no house in Kot Sardar Kahan Singh and that the house belonging to her father was (disposed of during his lifetime. In cross-examination, she further clarified that she had never gone to the house of Ali Nawaz. She was not suggested that before the sale, she was asked to purchase or that she refused to purchase it. Instead the suggestion was that she had allegedly gone to the house of Ali Nawaz D.W. Where the bargain in favour of respondent-purchaser was settled. Amazingly, neither in the written statement nor in the suggestion to any of the witnesses of the petitioner, it was pleaded that three times, the petitioner was asked to purchase the property in the presence of different persons but this story was introduced in their own evidence by respondents. As noted supra, even the plea that the petitioner was offered to purchase the land was not suggested to the petitioner herself.
8. As against this, the respondents produced Ali Nawaz D. W.l, the attorney of the vendor, who deposed that before the sale, in favour of the vendee, the land was offered to the petitioner. The perusal of his statement would show that the sum and substance of the stand is that a casual offer was made to the pre-emptor without a definite price and without a definite agreement. The statement falls to the ground when D. W.l admits that the sister of the petitioner, who had similar right of pre-emption, was not offered to purchase the land. It is amazing, how the petitioner selected one sister for making the offer and did not make such offer to the other sister, although, she could have pre-empted the sale on the same ground. This would obviously show that the story was concocted and has no real basis. Same is the position of D. Ws.2 to 4. For proving waiver and estoppel, the essential ingredients are, that there should be definite agreement to purchase the land at the fixed price between the vendor and the purchaser, offer to purchase the property must come from the vendor and not from the vendee, offer must contain specific price, at which the vendor was willing to sell or the price, at which the other persons were ready to pay, the factum of relinquishment of right of pre-emption must be proved through cogent evidence, the offer should be to the effect that the vendor wished to sell the land, the vendee or some other person was ready to pay fixed amount and that if pre-emptor wished to exercise his right of pre-emption, he could purchase property at the same price. To establish waiver, there must be cogent and clear evidence and mere oral evidence that the pre-emptor had the knowledge of sale in question would not be enough to establish that the pre-emptor had relinquished his right of pre-emption of sale. Mere presence of the pre-emptor at the time of bargain, would not preclude him/her from exercising his right of preemption and it has to be established that the pre-emptor intentionally relinquished his/her right to pre-empt sale.
9. The perusal of the evidence, led by the respondent would show that in the first instance, the plea which was not raised in the pleadings was tried to be elaborated in evidence. In the written statement the plea was that the pre-emptor had the knowledge and the bargain was struck with her consent but this plea was not suggested to the PWs including the petitioner. The respondent led evidence to the effect that the petitioner was asked thrice who refused to by and thereafter the bargain was settled with the vendee. Although the evidence is not satisfactory or worthy of reliance but even if this evidence is kept in view,, it does not satisfy or prove the ingredients of estoppel and waiver, as it was not proved that there was a definite agreement between the vendor and vendee, there was a definite price, the vendor offered the land to the pre-emptor at a definite price and that the pre-emptor intentionally relinquished her right or surrendered her claim in the presence of the witnesses. It was admitted in evidence that the vendor did not offer the land to the petitioner nor she ever refused the offer of vendor. Even he did not appear in evidence and instead D. W.l was produced, whose plea in statement was never suggested to the PWs. Again his statement does not indicate if the land was ever offered at a definite price or that there was a definite bargain with the vendee, after which the land was offered to the pre-emptor. Obviously, a pre-emptor need not to act in vacuum for the exercise of his right. Reference can be made to Haji Muhammad Versus Inayat (PLD 1987 Lahore 133), wherein it was observed that if the witnesses asked the pre-emptor but did not mention sale price or offered to purchase at a stated price, the prospective pre-emptor cannot be expected to act in vacuum and before consideration of an offer of sale, he had a right to be appraised of the price, which he/she was expected to pay for the bargain. Without being informed of such price, the pre-emptor cannot be expected to make conscious choice to reject proposal for sale. Reference can also be made to Bawkari & 4 others v. Salehon < 3 others (PLD 1972 SC 133), wherein it was ruled that until a sale actually takes place, no person can assume to have a right of pre-emption. It was ruled that the mere fact that someone did not outbid the highest bidder, would not show that he was no longer interested in claiming the right to pre-empt the property. It was further ruled that failure of a person, entitled to pre-empt or to outbid the purchaser, does not amount to waiver, in Hafiz Hassan Muhammad and 2 others v. Abdul Hameed & 2 others (PLJ 1982 SC 357), it was ruled that mere presence of the pre-emptor at the time of sale would not amount to waiver and that the waiver is a conscious relinquishment or surrender of right.
In Abdul Rashid v. Bashiran am1 another (1996 SCM R 808), it was observed that the presence of preemptor at the time when the bargain was struck, was not enough to draw an inference of acquiescence of sale and by mere presence at the time of bargain, no estoppel/waiver could be constituted.
10. In the present case to, evidence is indicative of the fact that the respondents do not claim that any offer was made to the pre-emptor after a definite bargain between the vendor and the vendee nor it could be proved that the land was offered at a definite price to the pre-emptor. This being so, the pre-emptor could not be expected to act in the air, in the absence of any definite bargain or in the absence of any definite price. The ingredients of estoppel/waiver, being missing in this case, th: learned Civil Judge rightly decreed the suit. The learned Additional District Judge completely ignored the evidence and also the law, applicable on the subject and the findings, recorded in appeal, suffers from perversity of reasoning, misreading and non-reading of the evidence and from error of jurisdiction.
11. Resultantly, this revision is allowed, the judgment dated 25.7.1987 of the learned Additional District Judge' is set aside while the judgment and decree dated 15.2.1986 of the learned Civil Judge is restored with the result that the suit of the petitioner would be deemed to have been decreed.