RAJA MUHAMMAD SABIR, J. - This revision is directed against the judgment and decree of learned Additional District Judge, Gujrat dated 8.1.1985 reversing the judgment of the Trial Court dated 11.3.1984.
2. Briefly the facts of the case are that Sardara respondent filed a pre -emption suit on 9.7.1975 against the petitioner/vendee of the sale effected through mutation No. 435, dated 31.7.1974 measuring 36 kanals, 11 marlas situated in Mauza Jalipur for Rs. 40,000/- detail whereof is given in para No. 1 of the plaint, on the ground of being real brother of the vendor and as a co-sharer in the suit land. The suit was contested by the petitioner/vendee who refuted the averments of respondent in the written statement. Petitioner also claimed Rs. 30,000/- as cost of improvement.
On divergent pleadings of the parties the following issues were framed:-
(1) Whether the plaintiff Sardara has been estopped to file the suit? OPD
(2) Whether the suit of plaintiff Sardara is partial, if so, with what effect? OPD-1-2.
(3) Whether the suit of Sardara plaintiff is for benefit and on the instance of vendor? OPD-1.
(4)Whether the plaintiff has got preferential right qua the defendants? OPP (5) Whether the ostensible sale price of Rs. 40,000/- was bona fidely fixed and paid to the vendor? OPD
(6) Market value? OP parties.
(7) Whether the vendee effected any improvement upon the suit land, if so at what costs and with what effect? OPD
(8) Whether the valuation of the suit for the purposes of Court-fee and jurisdiction is not correct, if so what is the correct valuation of plaint of Sardara? OPD
(9) Relief.
3. Learned Trial Judge dismissed the suit in view of the findings on issue No. 8, for not having paid proper Court-fee. Respondent preferred appeal whereas the petitioner filed cross objection. The cross objection was dismissed,, the appeal was accepted and the suit was decreed through impugned judgment.
4. Learned counsel for the petitioner has agitated the findings of the lower Courts on issues Nos. 1 and 7 only contending that the respondent Sardara was present at the time of attestation of mutation on 31.7.1974, waived his right, therefore, was estopped to file the suit and relied upon Naseer Ahmad Vs. Arshad Ahmad (PLD 1984 Supreme Court 403). He further argued that the evidence has been misread by the Courts below while deciding issue No. 7 relating to the improvement effected by petitioner in the suit land wherein he spent huge amount and he was entitled to Rs. 30,000/- as cost of improvements.
5. Learned counsel for the respondent, on the other hand, submits that the respondent has not waived his right of pre-emption in any manner. In order to non-suit a pre-emptor on this ground strong and positive evidence is required. Mere attestation of mutation of sale made by the respondent on the same day, would hardly be a ground to presume that he had the knowledge of sale of the suit land or it was offered to him and he refused to purchase and relief upon Ghulam A.I and others v. Allah Yar and others (1995 SCMR 945), Abdul Rehman v. Ghulam Muhammad through Legal Heirs and another (1995 SCMR 988), Shahmand and 5 others v. Allah Bakhsh (1997 SCMR 424), Muhammad Azam Khan and others v. Rehmat All and others (PLD 1993 Lahore 836), Muhammad Amin v. Maqbool (PLD 1990 Lahore 397) and Wazir Muhammad v. Ch. Muhammad Hussain through Legal Heirs and another (1993 CLC 1585 Lahore). He further submitted that issue No. 7 pertaining to improvements allegedly made by the petitioner in the suit land was concurrently decided against him after evaluating evidence on record, therefore, there is no justification to reverse such findings.
6........... Heard. Record perused. The sale was effected on 31.7.1974 through mutation No. 435 Ex.P-1. On the same day another mutation of sale made by respondent in favour of another person was effected through Mutation No. 433 Ex.D-5. The number of mutation shows that it ought to be attested prior to the impugned Mutation No. 435, but respondent has stated that his mutation was attested subsequent to that Ex.P-1. Although the number of the mutation indicates that respondent's mutation should have been sanctioned earlier than that of the petitioner but his statement is duly supported by evidence of Fazal Hussain PW-1 who categorically stated in reply to a question in cross-examination that when Mutation No. 435 was attested Sardara was not present there. Ghulam Rasool PW-2 stated that the mutation was attested by Tehsildar in the office of Union Council, Sarai Alamgir. He refuted the suggestion that on the day of attestation of aforesaid mutation Sardara also transferred land through sale mutation.
Sardara while appearing as his own witness stated that his brother used to sell land. He did not accompany his brother for effecting the aforesaid sale. On the day of attestation of mutation of his brother he also sold land through Mutation No. 433. Defendant after getting the land mutated in his name went away and thereafter mutation of plaintiff was attested. Petitioner appeared as DW-5 and stated that Sardara was present at the time of bargain and by his cooperation sale was settled and he was also present at the time of attestation of mutation. The examination of oral evidence of both the sides read with Ex.P-1 Mutation No. 435 and Ex.D-5 Mutation No. 433 are relevant for the purposes of decision on issue No. 1. Respondent's case was that he has not waived the right of pre-emption. Neither he participated in the transaction nor was present at the time of attestation of Mutation No. 435. In order to establish waiver positive and strong evidence is required. In the case of Muhammad Azam Khan (PLD 1993 Lahore 836) it was held as under:- ".......... Waiver is conscious act on the part of a sui juris person abandoning his legal right ........................
Mere presence of the son with his father who makes the sale is not sufficient to constitute waiver so as to disentitle the son from filing the pre- emption suit............... The same view was expressed in Muhammad Amin's case (PLD 1990 Lahore 397). In the case of Wazir Muhammad (1993 CLC 1585 (Lahore) it was held as under:- "Onus to establish waiver/estoppel being on the vendee, he failed to discharge such burden by producing, credible and convincing evidence. .Evidence of a stray witness speaking on the conduct of pre-emptor was insufficient. Waiver was conscious relinquishment of a known civil right by clear words or conduct leading to a conclusion that pre-emptor gave his consent to sale showing his unequivocal mind that he was not interested therein..... "
7. Burden of proof of issue No. 1 was on the petitioner who failed to discharge properly in establishing waiver by the respondent. It is just a co-incident that Mutations Nos. 435 and 433 were attested on the same date. Respondent has deposed that in his presence impugned mutation was not attested. His evidence is supported by PW-1 also. The Supreme Court in the case of Ghulam All observed in para No. 4 as under:- "The right of action to file pre-emption suit accrued to the respondents when the above sale transaction was entered into between the petitioners and the vendor and, therefore, the petitioners were obliged to bring on record material to prove the factum that in September, 1971, when the petitioners were negotiating for the above sale transaction, the respondents were offered the suit land by the vendor or by them and that by his words or conduct, he waived his right to claim pre- emption. The act or conduct on which plea of waiver or estoppel is to be founded should have direct nexus with the sale transaction of which right of pre-emption is claimed and should have taken place at the, time of such sale transaction, The transaction of 14.10.1970 is independent from the right of pre-emption and, therefore, the same 'cannot be pressed into service to defeat the respondents' right of pre-emption which accrued to them on 25.9.1971 and not in October, 1970."
Similarly in another judgment in the same volume in Abdur Rehman's case it was observed that waiver has to be established through relevant material by the party who alleges. In the case of Shahamand referred above in similar circumstances it is laid down by the Supreme Court in pra No. 3 as under:- "The main contention bn behalf of the petitioners is that before purchasing the land they had made an offer to Allah Bakhsh to buy the same but the declined to accept the offer on the ground that he was short of funds. It is to be noticed that the question whether any offer was made to the pre- emptor was one of fact. When he appeared in the witness-box he was not confronted with the details of the offer allegedly made to him; thus he was not asked about the person or persons who made the offer. He was also not questioned about the place or the occasion where or when the offer was made. Quite obviously, it was a trumped up plea. The Courts below were, therefore, justified in holding that it had no substance. We would accordingly refuse to grant leave to appeal to the petitioners."
The aforesaid judgments clearly show that there must be positive evidence to non-suit a pre- emptor on the plea of waiver or estoppel. The averment of petitioner that he remained associated with settlement of transaction is denied by the plaintiff. He has specifically taken a plea that he had no knowledge of the sale made by his brother. It was for the petitioner to prove through reliable evidence that respondent is hit by the principle of waiver and estoppel. In the absence of any such reliable evidence his plea cannot be accepted.
8. The judgment cited by the learned counsel for the petitioner proceeds on different facts. In that case the vendor had offered the land in question for sale to the plaintiff at same price through a Panchayat but he had refused to purchase it. The learned Trial Court decided the aforementioned issue against the plaintiff on the ground that since no notice had been given by the vendor under Section 19 of the Punjab Pre-emption Act, 1913, the evidence that Haider (the vendor) had first offered the land in question to Nazir Ahmad pre-emptor at the same price of Rs. 16,000/-on which he subsequently sold it to the respondent was not sufficient for giving findings that petitioner/plaintiff had waived his right of pre-emption. The Trial Court, therefore, decreed the suit.
The appeal of the defendant was dismissed who thereafter preferred regular second appeal in which the High Court reversed the findings of both the Courts below and dismissed the suit by relying upon Baqri and 4 others v. Salehon and 3 others (PLD 1972 Supreme Court 133). Pre-emptor thereafter filed a petition for leave to appeal but the same was dismissed .On the ground that the land was offered to him for sale in the presence of Panchayat and he refused to purchase it and thereafter it was sold at the same price to the vendees.
9. The facts of the present case are clearly distinguishable. No such offer was made in the presence of any Panchayat or person nor any such evidence was led by the petitioner during the trial. Petitioner failed to discharge burden of proof of issue No. 1. The impugned judgment is based on proper appreciation of evidence on record and calls for no interference.
10. As far as his argument for improvement is concerned, both the Courts below disbelieved his evidence.. Concurrent findings of facts based on proper appraisal of evidence cannot be interfered with in revision. No misreading or non-reading of the evidence has been pointed out during hearing of the revision petition. Petitioner is in continuous possession of suit land since 31.7.1974 and is reaping its fruits. He has gained more financial benefits than the cost of improvements, during this period of 26 years. On this ground also he is not entitled to any relief for improvements.
11. For the reasons stated above, the petition has no merit and is dismissed with no order as to costs.