' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been preferred against the judgment and decree passed by the High Court on 10-10-1997, whereby the appeal filed by the appellant, herein, was dismissed.
2. The necessary facts, briefly stated, are that in order to pre-empt a sale- deed dated 8-11-1989 executed by respondent No,2 in favour of respondent No,1 two suits, one by Ghulam Rasool plaintiff- appellant, herein, and the other by Noor Muhammad son of Kala, 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 recording the evidence of 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 elect to file any appeal. However, the appeal filed before the District Judge by the plaintiff-appellant was dismissed. The second appeal taken to the High Court also met the same fate. The impugned judgment and decree were recorded by the High Court on 10-10-1997 which are the subject of present controversy in this appeal.
3. The High Court dismissed the suit of the plaintiff/appellant mainly on the following grounds:--
(i) that the appellant entered into an agreement (Iqrarnama) with the vendee defendant on 12-11- 1989 foregoing his right of pre-emption after receiving Rs,10,000 by the vendee on the undertaking that he would refrain from pre-empting the sale-deed as such the principle of waiver was fully attracted;
(ii) that the appellant failed to take oath on Holy Qur'an as offered by the vendee-respondent but at the same time admitted the receipt of Rs,10,000 from the vendee by extending a promise not to file the preemption suit; and
(iii) that the findings of fact concurrently recorded by the trial Court as well as the first appellate Court could not have been upset by the High Court, howsoever, erroneous the same may be.
4. Raja Muhammad Siddique Khan, the learned counsel for the appellant, vehemently contended that in so far as the prior right of the appellant was concerned the same was not controverted or denied by the other side. However, the trial Court as well as the first appellate Court and the High Court misdirected themselves by applying the principle of waiver. The learned counsel contended that the execution of Iqrarnama' was not proved by any of the witnesses produced by the respondent-defendant and there were material contradictions in the evidence of the witnesses produced by the defendant with regard to 'Jirga' taking place in presence of various persons between Ghulam Rasool pre-emptor and the defendant-vendee. The learned counsel strenuously contended that in the Iqrarnama' it was not mentioned that pre-emptor received Rs,1Q,000 from the vendee nor the same plea was raised in the written statement. It was also emphasised by the learned counsel that from the recitals of 'Iqrarnama' it could not be inferred that the plaintiff/pre- emptor waived his right of pre-emption. The learned counsel strenuously submitted that on the basis of application moved by the vendee-respondent on 27-6-1993, in the trial Court, the statement of preemptor was recorded on the same date from which it stands established that no oath was administered to the pre-emptor as prayed for by the vendee. Even from the said statement of the pre-emptor it could not be construed that he waived his right of pre-emption. On the basis of aforesaid submissions the learned counsel contended that all the Courts misread and non-read the evidence and the same was not appreciated in its true perspective in accordance with the pleadings of the parties. His contention precisely is that the evidence relied upon by all the Courts being contrary to the pleadings of the parties was not to be given any weight.
5. In reply Mr. Abdul Majeed Mallick, the learned counsel for the defendant-vendee, took strong exceptions to the submissions made by the learned counsel for the appellant. It was argued by the learned counsel for the respondent, that those points were neither raised in the memorandum of appeal before the District Judge nor the High Court nor argued before those Courts could not have been raised for the first time in the Supreme Court. The learned counsel took us through the memorandum of appeals filed before the District Judge and the High Court and submitted that the points raised during the arguments before this Court are totally alien to the pionts raised before the lower and the first appellate Court. The learned counsel also pointed out that in the written statement a specific objection was raised that the plaintiff had waived his right of prior purchase, as such he was not competent to file the suit against the vendee-defendant. On the point of waiver an issue was framed by the trial Court and the evidence was led by the defendant-vendee in support of the plea but the plaintiff-pre-emptor neither controverted the said plea in the replication nor denied the receipt of Rs,10,000 in lieu of his undertaking to refrain from filing the suit for pre-emption. The learned counsel contended that the defendant by producing the cogent evidence, prima facie, discharged the burden of issue of waiver but in rebuttal even Ghulam Rasool plaintiff-pre-emptor himself did not enter into the witness-box nor in the cross-examination it was suggested to any of the witnesses produced by the defendant-vendee that in fact no 'Jirga' took place nor the pre-emptor promised to refrain from filing the suit for preemption. Abdul Razzaq the scribe of 'Iqrarnama' appeared as a witness from the side of defendant. This witness categorically established the execution of 'Iqrarnama' but he was not cross-examined on the point of execution of 'Iqrarnama'. Similarly the other marginal witnesses of 'Iqrarnama' were also not cross-examined by the plaintiff-pre-emptor. Therefore, their evidence on the said point shall be deemed to have been admitted. So, it could not have been argued for the first time that the execution of 'Iqrarnama' was not proved or it could not have been inferred that the plaintiff-pre-emptor did not waive his right of pre-emption. The learned counsel also submitted that there were concurrent findings of fact recorded by the trial Court as well as the first appellate Court which were ultimately confirmed by the High Court. The High Court, according to the learned counsel, rightly did not interfere with the concurrent findings of fact as the same was not within the jurisdiction of the High Court or this Court even if the High Court and this Court could have reached a different conclusion on the appraisal of evidence.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the record with care it may be stated that the moot point in the instant case is as to whether the principle of waiver is applicable in view of the circumstances of the case or not. To begin with it may be pointed out that in the written statement the defendants have taken a specific plea that plaintiff had waived his right of pre-emption. This plea raised by the defendant was not controverted by the pre-emptor nor any replication was filed by the plaintiff-preemptor to rebut the aforesaid assertion. The trial Court framed issue No,8 pertaining to waiver and onus of this issue was placed on defendant. On this issue the defendant produced Abdul Razzaq the scribe of Iqrarnama' Exh.DA, Muhammad Yusuf, Muhammad Akbar and Muhammad Khan, Defendant- vendee also appeared as his own witness. Abdul Razzaq the scribe of Iqrarnama' Exh. DA, categorically stated that he wrote 'Iqramama' Exh.DA on behalf of Ghulam Rasool plaintiff for which instructions have been given by Ghulam Rasool and he admitted the "Iqrarnama'; to be correct.
This witness also recognized his signatures on the document as Exh. DA/1. Muhammad Yusuf the witness for the defendant deposed that in the 'Jirga' Ghulam Rasool plaintiff was offered to purchase the land but he refused to purchase the same. The witness further stated that 'Iqramama' Exh. DA was written in his presence and his signatures were Exh.DA/3 on the document which are correct. The Iqrarnama' was written on behalf of Ghulam Rasool. A sum of Rs,10,000 was received by Ghulam Rasool in 'Jirga' on the condition that he would not file a suit for pre-emption.
The 'Iqramama' according to the witness, was executed on 31-10-1989. Muhammad Akbar another witness of the defendant, stated that before the execution of sale-deed Kala Khan vendor had gone to the house of Ghulam Rasool and offered him to purchase the property. Ghulam Rasool in return told Kala Khan that he would not purchase the property. With regard to Jirga it was stated by the witness that a sum of Rs,10,000 was received by Ghulam Rasool from Muhammad Khan on the condition that he would not pre-empt the sale. D. Ws. Muhammad Akbar, Muhammad Yusuf and Muhammad Khan, vendee are unanimous on the point that the pre-emptor received a sum of Rs,10,000 from Muhammad Khan. On his undertaking not to file the suit for pre-emption. As said earlier, an application was moved in the trial Court by Muhammad Khan, vendee on 27-6-1993 stating therein that Ghulam Rasool pre-emptor had received a sum of Rs,10,000 from him on the undertaking that he would not preempt the suit property. It was averred in the application that if Ghulam Rasool would take oath on Holy Qur'an that he had not received the amount for the said purpose then he had no objection for the dismissal of his suit. On this application being presented in the Court Ghulam Rasool, however, got his statement recorded on the same day whereby he accepted the receipt of Rs,10,000 from Muhammad Khan and alleged that he was prepared to return the amount. Ghulam Rasool plaintiff in the Court was identified by Ch. Muhammad Hussain, Advocate as his client. In view of the position explained above, there remains hardly any manner of doubt that in the 'Jirga' held between the parties C in presence of so many notables Ghulam Rasool plaintiff-appellant agreed that he would not purchase the suit property and pay the amount demanded by the vendor as the same was beyond his means and that he would not proceed with the filing of pre-emption suit.
7. Raja Muhammad Siddique Khan, the learned counsel for the appellant, strenuously contended that in the Iqrarnama' there was no entry of the receipt of Rs,10,000 as such the whole story seems to be an afterthought and concocted. Be that as it may, it is correct that there is no entry of receipt of Rs,10,000 by the pre-emption on behalf of vendee but this argument on careful consideration has no legs to stand upon for the simple reason that when application dated 27-6-1993 was moved by the vendee in the trial Court the pre-emptor categorically admitted the receipt of the said amount. It was also deposed by the receiptient that he was prepared to return the said amount. When the learned counsel for the appellant was confronted with such a situation he submitted that the pre-emptor might have received the amount for some other land but this plea also has no legal basis or foundation because in the sale-deed itself it has been recited that the vendor has sold his entire share and there was no estate left by him. If 'Iqrarnama' had not been executed by the pre-emptor as claimed by his learned counsel he was at liberty to put his case to the witnesses produced by the defendant in support of this plea but none of the witnesses for the defendant were cross-examined on the point that the pre-emptor did not receive the amount of Rs,10,000 on his undertaking for not filing the pre-emption suit nor any question was suggested to the witnesses that any such 'Jirga' as alleged by the vendee, was neither held nor its participants participated in that. The minor and meager contradictions in the oral statements of various witnesses which do not materially affect the case of either one or the other party do not substantially rebut the evidence produced by the defendnat-vendee.
8. There is another important feature of the case, as said earlier that initially the burden of proving the issue of waiver was on the defendant-vendee who on the basis of tangible evidence shifted the burden to the plaintiff-pre-emptor. It was brought on record by the defendant-vendee that he offered the sale of the suit property to the plaintiff-pre-emptor on payment of consideration money but he refused to purchase the suit property. Similarly, it was also argued that the plaintiff- pre-emptor received a sum of Rs,10,000 from the defendant-vendee in lieu of an undertaking that he would not file a suit for pre-emption, in such an eventuality the best evidence, in the circumstances of the case, was the plaintiff-pre-emptor himself who did not enter into witness-box to oppose the assertion of the defendant-vendee. Thus, adverse inference for his omission not to examine himself as a witness will go against him. Our aforesaid view is supported by a reported case titled Saleh Muhammad Khan v. Hassan Muhammad Khan (1981 CLC 353). The relevant observation is recorded at page 357.
9. The word "waiver" has been defined in Law Terms and Phrases by Sardar Muhammad Iqbal Khan Mokal at page 939 and it has been extracted from PLD 1957 SC (Ind.) 346, which reads as under:-- "Waiver as commonly understood, is an intentional relinquishment of a known right. It may consist either of a positive act relinquishment or of conduct such as would warrant an inference of relinquishment of right."
' Again in the case reported as AIR 1965 SC 1405, waiver has been defined as follows:-- "Waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights."
' It is correct that no hard and fast rule can be laid down for constitution of waiver but it has to be seen in the light of the facts of a particular case. In the present ease, the pre-emptor in the 'Jirga' held between the parties clearly waived his right by accepting the position that he was not prepared to purchase the suit property on the amount offered by the vendor as he being a poor man it was not within his means. Thus, by accepting the amount of Rs,10,000 he for an undertaking to refrain from filing the pre-emption suit in our considered view it clearly constituted a waiver on his part and we have no reason to differ with the findings recorded by the trial Court, the first Appellate Court and the High Court.
10. In case reported as Naseer Ahmad v. Arshad Ahmad, (PLD 1984 Se 403) it was observed at page 406 of the report as under:-- "It would be noticed that the law has itself provided a procedure, through sections 19 and 20 of the Pre-emption Act, whereby the right of pre-emption can be foreclosed even before the sale takes place. It cannot, therefore, be urged that such a right cannot be waived at all till such time as it comes into existence i,e, till after the vendor has sold the land in question to the vendee. Pre- emption being a predatory right in nature we are of the view that Courts should place a broad and beneficial interpretation, on the aforementioned sections and the principle of waiver arising therefrom, rather than trying to whittle down, through hyper-technical arguments, the claim of the defendant-vendee that the pre-emptor who was associated with the sale proceedings, or had taken part in the auction, had waived his right to purchase it either by refusing to buy it at the price at which the land was offered to him or even by refraining from bidding the same price than the offered by the highest bidder at an auction."
11. Even otherwise, it has been held by this Court time and again that concurrent findings of fact recorded by the trial Court and the first Appellate Court cannot be disturbed unless a case for misreading, non-reading or gross injustice has been made out. Even if on the appraisal of the evidence a different conclusion is arrived at by the High Court or this Court, the same cannot be a ground for setting aside the concurrent findings, howsoever, erroneous the same may be. Reliance in this regard is placed on a reported case of this Court titled Shah Alam and another v. Hay.
Muhammad Nawaz Khan and 5 others (PLD 1981 SC (AJ&K) 124). The relevant observation is recorded at page 126 in the following manner:- "It would thus appear that unless some procedural defect such as non-reading of evidence, misreading of evidence or travesty of the findings is not established, a finding of fact cannot be allowed to be discharged by the High Court."
12. In support of the above proposition reported cases titled Ali Haider Khan v. Sher Afzal Khan and 13 others (PLD 1983 SC (AJ&K 5) and Fazal Karim v. Abdul Manaf and another (1997 M LD 2867) may usefully be referred, but in the instant case the findings recorded by the Courts below or by the High Court cannot be termed as erroneous.
' For the reasons stated above finding no force in this appeal it is hereby dismissed with no order as to the costs.
' BASHARAT AHMAD SHAIKH, J.---I agree with the conclusion reached by my learned brother Muhammad Yunus Surakhvi, J., that waiver is proved in the case but I want to make some observations about the plea raised by Raja Muhammad Siddique Khan, the learned counsel for the appellant, about the dispute regarding payment of Rs,10,000 to the appellant.
' In the written statement filed by the respondents there was no averment that the appellant had received Rs,10,000 on the understanding that he would not file a suit for pre-emption. Consequently this aspect of waiver was not specifically included in the issues. In support of wavier an lqrarnama' was relied upon but it does not mention the factum of the aforementioned payment. However, when evidence was recorded some witnesses deposed that the appellant had received Rs,10,000 on the promise that he will not file the suit for pre-emption. On 27-6-1993, an application was moved by the defendants in which it was alleged for the first time that the appellant had taken Rs,10,000 and it was prayed that the matter may be decided on special oath. The appellant refused to take special oath but still his statement was recorded in which he deposed that he had taken Rs,10,000 which he was willing to pay back. The argument of Raja Muhammad Siddique Khan, is that a point which has not been raised in the pleadings cannot be considered by the Courts.
' The circumstances in the present case that the appellant declined to take oath but still his statement was recorded in which he admitted having received Rs,10,000 (without specifying as to why he had taken the amount). I find force in the submission of Raja Muhammad Siddique Khan, that evidence on a matter extraneous to the pleadings cannot be considered by the Courts. This is settled principle of law. However, after eliminating evidence on this point, the case of the appellant is still not proved as has been discussed at length by my learned brother in the judgment. I need not discuss the evidence as it has been appreciated in the main judgment but I want to point out that there are two salient features which in my estimation, create insurmountable hurdles in the way of appellant. Firstly, this Court cannot set aside a finding of fact even if it takes a different view of evidence unless there is gross misreading or non- I reading but there is no such situation in the present case. The second point is that the appellant did not appear as his own witness to contradict the assertions made by the witnesses produced by the defendants. It is a fit case in which the circumstances justify the raising of presumption that if the appellant had appeared as his own witness his statement would have been gone against him. I may also point out the fact that he accepted having received Rs,10,000 shows that he is a man who would not have made a wrong statement on oath if he had appeared as a witness.
' With these observations I agree that the appeal may be dismissed.