SYED JAMSHED ALI, J. - This is pre-emptors' revision petition who succeeded before the learned Trial Court but on appeal of the vendees the decree was reversed and his suit was dismissed.
2. Land measuring 13 Kanals, 17 Marlas situated in Chak No. 296/R.B. Tehsil and District Faisalabad was owned by Maqbool Khan. Vide registered sale-deed dated 2.1.1978, he sold this land to the respondents for a consideration of Rs.35,000.00. Yousuf Khan deceased (now represented by the petitioners), claiming to be real maternal uncle of Maqbool Khan, the vendor, pre-empted the said sale. The suit was contested by the respondents on which after framing necessary issues it was tried.
3. The learned Trial Court found that the pre-emptor had superior right and that he had not waived his right to pre-empt the sale. The sale consideration was found to be Rs.35,000.00 as recited in the sale-deed. Accordingly, vide judgment and decree dated 28.4.1981, the suit filed by the petitioner was decreed.
4. The vendees took an appeal before learned District Court which was allowed by learned Addl.
District Judge, Faisalabad on 4.1.1984, on the grounds that the respondents-vendees being tenants on the land in dispute could defend the sale in their favour and that the pre-emptor had waived his right to maintain the suit.
5. Learned Counsel for the petitioners has assailed the above said findings of the learned first Appellate Court. According to him, the learned Addl. District Judge, has mis-read the record in arriving at the conclusion that the respondents were tenants on the suit land. On the issue of waiver his contention was that it was a case of no evidence.
6. Learned counsel for the respondents has defended the judgment and decree of the learned first Appellate Court. He has particularly pressed the plea of waiver and has also feebily defended the finding regarding the claim of the respondents to be the tenants on the suit land.
7. 1 have considered the submission made by learned counsel. The finding of the learned first Appellate Court that the respondents were tenants on the suit land is based on Ext. P-6 (khasra girdawari for Kharif 1977-78). A perusal thereof shows that the respondents are recorded as co- sharers. The learned first Appellate Court thought that merely because respondents were in cultivating possession (even though as co-sharers), they were tenants on the suit land. A co- sharer does not hold land under the other co-sharer and is not liable to pay "rent" to the other co- sharer. Therefore, the finding of the learned first Appellate Court is not sustainable.
8. Reliance of the learned first Appellate Court on the report of the Tehsildar dated 19.4.1977 (Ex.D-6) was totally in-apt. This report was made by the Tehsildar, Lyallpur (now Faisalabad) on the application of one Muhammad Yousuf son of Nathu Khan a co-sharer in the khata (out of which the land in dispute was sold), for appointment of a Manager under paragraph 23 of Land Reforms Regulation, 1972 (M.L.R. 115). According to this report, the Rabi crop of 1977 was cultivated by Khushi Muhammad etc. Respondents and for Kharif 1977 the land was auctioned in favour of one Muhammad Azam. According to even this report, Khushi Muhammad etc. Could not retain the land as tenants because they were co-sharers.
9. As far as the issue regarding to waiver is concerned, the learned first Appellate Court, in reaching this conclusion, relied upon a portion of the statement of PW-1, the vendor, who deposed that he had asked the deceased pre-emptor to purchase the land but he had refused. The finding of the learned Trial Court, however, on the issue was that no evidence of waiver had been produced by the respondents-vendees.
10. It may be noted that in the written statement the plea was raised but it was not even stated therein that the land was first offered to the deceased pre-emptor. DW-3, Mehr Ali, one of the vendees-respondents did not so claim when he appeared in the witness-box. The evidence coming from the PW-1 was only hearsay. According to him Maqbool Khan had informed him that he had first offered the land to the deceased pre-emptor. There was no other evidence on the point. The learned first Appellate Court picked up a isolated portion of the testimony of PW-1, although in the same breath he stated that he did not ask anybody, he was rather, not on speaking terms with the deceased-pre-emptor and was annoyed with him. This statement read as a whole could hardly constitute waiver, particularly, when even one of the vendees did not so claim as DW- 3.
11. I may add that mere offer to a pre-emptor will not constitute waiver unless it is also established that it was offered to him at the price of which it was sold. Section 19 of the Punjab Pre-emption Act, 1913 contemplating a notice, inter alia, to a pre-emptor expressly requires to notify the "price at which he is willing to sell such land........ ". There is an apparent wisdom in this command of law. A vendor may offer the land to a pre-emptor on unrealistic and inflated price at which the pre- emptor may justifiably decline to purchase. Unless, therefore, the offer was accompanied with the sale price, mere offer will not constitute waiver. Even otherwise, to non-suit a pre-emptor, very strong, clear and cogent evidence was required which was lacking in this case.
12. In view of the above, this revision petition is allowed. The judgment and decree of the learned first Appellate Court is set aside and that of the learned Trial Court restored. The parties are left to bear on costs.