1. ' SAIDUZZAMAN SIDDIQUI, J.---Agricultural land measuring 176 Kanals, 19 Marlas situated in Bohlariwala, Tehsil Shahpur, District Sargodha (hereinafter to be referred as 'the suit land') was purchased by the appellants from one Ibrahim for sale consideration of Rs,1,50,000. The respondents instituted civil suit claiming right of pre-emption over the suit land on the ground of being co-owner in the estate. The trial Court after recording evidence of the parties decreed the suit filed by the respondents but on appeal preferred by the appellants, the 1st Appellate Court accepted appeal of the appellants and reversed the judgment and decree of the trial Court. On further appeal before the High Court, a learned Judge in Chambers set aside the judgment and decree passed by the learned 1st Appellate Court and restored the judgment and decree of the trial Court giving rise to the present appeal to this Court.
2. Mr. Ch. Mushtaq Ahmed, the learned counsel for the appellants has raised only one contention in support of the above appeal. It is contended by the learned counsel that the respondent No,1 in his evidence before the trial Court categorically admitted that he had no funds at the time the suit land was sold by Ibrahim to the appellants, and therefore, he could not purchase the same.
2. According to the learned counsel for the appellants this statement of the respondent No,1 was enough to show that he had waived his right of preemption in respect of the suit land. It is, accordingly, contended by the learned counsel that the respondents were estopped from asserting their right of preemption in respect of the suit land or file any suit for enforcement of that right.
3. The learned counsel for the respondents, on the other hand, supported the judgment and decree of the High Court and contended that the statement of the respondent No,1 before the trial Court, that he could not purchase the land in suit as he had no funds available at the time of its sale to the appellants, did not amount to surrender or waiver of his right of pre-emption. According to the learned counsel this statement of the respondent, on the contrary, proved his intention to purchase the land as and when the funds were available, subject, of course, to the limitation prescribed for filing of the suit. The relevant part of the statement of respondent No,1, which is relied upon by the learned counsel for the appellants in support of his contention that he had surrendered his right of pre-emption before the sale of the suit land in favour of the appellants reads as follows:-- {{URDU TEXT}} ' The learned counsel for the appellants has relied on the following cases in support of his contention that the above statement made by respondent No,1 before the trial Court amounted to waiver of his right of pre-emption in respect of the suit land:--
(1) Muhammad v. Muhammad Ali (AIR 1926 Lahore 243).
(2) Ram Sahai v. Md. Tufail (AIR 1929 Lahore 265).
(3) Abdul Manan v. Sikandar Khan (1992 CLC 504).
(4) Naseer Ahmad v. Arshad Ahmad (PLD (sic) SC 403).
(5) Muhammad Bakhsh v. Safdar Hussain (1986 SCM R 300)
3. ' In the first-mentioned case, Muhammad v. Muhammad All (supra), from facts as noted in the reported case, it appears that the vendor of the land applied to the Collector for permission to sell her land to a person, who was a non-agriculturist. In those proceedings the plaintiff/pre-emptor was given notice and he appeared before the Collector and made a statement to the effect that he could not afford to pay the amount and that so far he was concerned the vendor was at liberty to sell the suit land to the proposed seller or to any one who would pay her the price of the land.
4. This statement made by the plaintiff-pre-emptor was considered in the above-cited case as a statement waiving right of preemption by the plaintiff. In the second case, Ram Sahai v. Md. Tufail, the plaintiff/pre-emptor before the sale of house which was being sold, declined to purchase the same on the ground that it was situated in Muhammadan Mohallah. This admission on the part of the pre-emptor/plaintiff in the case was considered as waiver of his right of pre-emption under sections 19 and 20 of Punjab Preemption Act, 1913. It is, therefore, quite clear from the facts of the above two cases, relied by the learned counsel for the appellants, that the pre-emptors in these cases were specifically offered the property before sale but they declined to purchase the same on the ground of either having no funds or because of the situation and location of the suit property. It was, in these circumstances, that in the above-cited two judgments, the Lahore High Court came to the conclusion that the plaintiff/pre-emptor had waived his right of pre-empion. These facts are, therefore, in our view, distinguishable from the case before us.
5. ' In the case of Abdul Mannan v. Sikandar Khan (supra), the plaintiff/pre-emptor had agreed with the vendor to purchase the land but, thereafter, he failed to arrange the funds and the land was sold to the vendee, who 'was introduced by the pre-emptor himself. The facts of this case are, therefore, quite distinguishable from the facts of the present appeal. In Muhammad Bakhsh v.
6. Safdar Hussain, the facts were that the preemptor/plaintiff was an attesting witness of the sale in favour of the vendee. The plaintiff/pre-emptor was non-suited in the case on the ground that by participating in the sale, he had waived his right of pre-emption in respect of the suit land. In the appeal filed before this Court, it was contended by the learned counsel for the pre-emptor/plaintiff that mere fact that the plaintiff/pre-emptor was a witness to the sale-deed, was not enough to defeat his claim of preemption as it was possible that he might have acted as an agent of the vendor in that case. On facts this Court found that the plaintiff/pre-emptor failed to establish that while attesting the sale-deed as a witness, he was acting as an agent of the vendor. It was in this context that this Court held t' hat act of signing the sale-deed as witness amounted to waiving the right of pre-emption in respect of the suit land. In Naseer Ahmad v. Arshad Ahmad (supra), it was held that a preemptor can waive his right even before the sale of land to a vendee.
7. ' It is, therefore, quite clear that the facts in each of the above case relied by the learned counsel for the appellants were quite distinguishable. It is obvious that in all the above-cited cases relied by the learned counsel for the appellants, the plaintiff/pre-emptor, through overt act had created a situation whereby it was inferred that he had waived his right of pre-emption in respect of the land sold to the vendee.
8. In the case of Bari v. Salehon (PLD 1972 SC 133) this Court held that the right of pre- emption arises on the sale of the property in question but this right can be waived by the pre-emptor before the actual sale, either by express refusal to purchase the property or a clear conduct of the plaintiff showing that he is not interested in the purchase of the property. In that case, pre-emptor had participated in a private auction of the property which was sold on two occasions and on both the occasions, he was out bid by another person. When the plaintiff/pre-emptor filed a suit in exercise of his right of pre-emption in respect of the land, it was contended before the Court that by taking part in the auction, he was estopped from subsequently asserting his right of pre-emption in respect of that land. This contention was repelled by this Court on the ground that by mere taking part in an auction where the pre-emptor was out bid, it cannot be concluded that he has either expressly or by his conduct waived his right of preemption over the suit land.
9. In the case before us, the question which arises for consideration is, whether the plaintiff by stating in his evidence that at the time the suit land was sold, he had no money to purchase, and therefore, he could not purchase the same and that now he has been able to arrange the money, he is exercising of his right of pre-emption, waived his right of pre-emption over the suit land. As held in Baqri's case (supra), the right of pre-emption arises only on the sale of the property but it is open to the pre-emptor to waive his right before the actual sale either by express refusal to purchase the property or by a clear conduct on his part showing that he was not interested in the purchase of the property. There is nothing in the evidence to show that the vendor or the vendee had approached the respondents before sale of the suit land and offered them to purchase the property but they declined to purchase the same on the ground that they had no money to purchase the same. The statement of respondent No,1 before the trial Court that he could not purchase the property at the time of its sale as he had no money then, in our view neither amounted to waiver of the pre-emption right nor this statement of respondents was indicative of a conduct which could be construed as waiver of their right of pre-emption. In fact, his assertion that as soon as he was able to collect necessary funds, he exercised his right of preemption in respect of the suit land indicated that at no stage, he had given up his right of pre-emption in respect of suit land. The ratio laid down in Baqri's case (supra), in our opinion, fully applies to the present case and we, accordingly, agree with the conclusion of the learned Single Judge that respondent No, 1 by stating in his evidence that he could not purchase the property at the time of its sale, did not surrender his right of pre-emption over the suit land. No case for interference with the judgment is made out. The appeal is, accordingly, dismissed but in the circumstances of the case, there will be no order as to costs.