R.S.A. Nos. 157 and 158 of 1988, are being disposed of together as, facts of the case, are almost the same, while the question of law raised in both the appeals; is common.
2. Appellants being minors through their father, filed a suit for pre--emption, challenging the sale of the suit-land, made in favour of the respondents, claiming superior right of pre-emption on the basis of being collaterals of the vendor. This suit was contested by the respondents. Issues were framed and the learned Civil Judge, vide judgment and decree dated 16-7-1984, allowed the suit finding material issues in favour of the pre--emptors/plaintiffs, particularly the superior right of pre-emption. It may be pertinent to state here, that the respondents/vendees, had resisted the suit mainly on the ground that Col. Shahzad Ahmad Khan, the father of the plaintiffs, was present at the time of the sale. He was offered to purchase the property, but declined. Moreover, that in an another case the plaintiffs through their father, had pre-empted such sale, but subsequently, withdrew the suit after getting more money. Therefore, it was asserted that the appellants were estopped by their own conduct; have not approached the Court with clean hands, and waived their right of pre-emption. The relevant issues, in this behalf, were decided against the respondents/defendants and the decree, as mentioned above, was passed by the trial Court. On appeal filed by the respondents/defendants, the judgment and decree of the learned Civil Judge, has been reversed on the above three issues and the plaintiffs, are found to have waived their right of pre-emption, and having approached the Court with unclean hands and estopped by their own conduct to file the suit for pre-emption. The learned Additional District Judge, while giving his findings, has mainly relied on the judgment reported as Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403).
3. Learned counsel for the appellants, has contended that the aforesaid judgment, was not applicable to the facts and circumstances of the case, it has neither been pleaded in defence nor proved on the record if, the suit filed by the plaintiffs, was Benami and was for the benefit of their father, Col. Shahzad Ahmad Khan; the so-called waiver on the part of Col. Shahzad Ahmad Khan; cannot in law be deemed to be a waiver by the plaintiffs of their pre-emptive right, which was independent and personal in nature, incapable of being waived by even a natural guardian.
4. Learned counsel for the respondents, has supported the judgment and it is argued, that the previous conduct of Col. Shahzad Ahmad Khan, clearly indicates that he was in the habit of challenging the sales through pre--emption and after getting more money, used to give up the pre-emption actions. In order to prove, that the right of pre-emption was waived by the plaintiffs/appellants, the reliance has been placed upon the statement of D.W.1 Muhammad Ibrahim, who has deposed, that he had purchased some property, which was pre-empted by the plaintiffs' side through their father, but subsequently, the matter was compromised and the appellants/plaintiffs received more money and withdrew the case against him. D.W.4, Muhammad Hanif, stated that when sale was negotiated at the house of the vendor, Major Bashir, and at the relevant time, Col. Shahzad Ahmad Khan, the father of the appellants, was also present. He was asked to. Purchase the property, but stated that he has no objection to the sale, as he himself intended, to sell his own property as well. D.W.5, Nazir Ahmad, the respondent-vendee, has also deposed to the same effect. It is submitted by the learned counsel for the respondents, that the statements of these witnesses were not subjected to cross-examine, thus, would be deemed to have been admitted, moreover, while appearing as P.W.2, Col. Shahzad Ahmad Khan, has admitted about the earlier litigation and compromise between him and Muhammad Ibrahim, D.W.1 and the withdrawal of the suit for pre-emption, therefore, it is proved on record, that the right of pre- emption was waived by the appellants through their father and they were estopped by their own conduct to challenge the sale in favour of the respondents and also approached the Court with unclean hands.
5. Arguments have been heard. According to the judgment reported as Jam Pari v. Muhammad Abdullah (1992 SCMR 786), mere presence of the pre-emptor at the time of sale by itself would not be suggestive of his participation in the transaction, to denude him on the ground of waiver of his legal right to pre-empt the sale. Waiver is an intentional relinquishment of known right and unless there is cogent evidence reflecting the person's conduct clearly indicative of the abandonment of his right, he cannot be said to have deliberately forgone his right. In both these cases, Muhammad Ibrahim, D. W.1; has not averred if, he was present at the time of sale; the land was offered to Col. Shahzad Ahmad Khan, who refused to purchase the same. D.W.5, Nazir Ahmad, in R.S.A. No. 157 of 1988 and Muhammad Siddique, D.W.5, in the other appeal, are the defendants themselves, and much weight cannot be given to their testimonies. The only statements left for consideration are those of DWA in the respective cases, namely Muhammad Hanif and Jaffar A.I, who have stated that the sale was offered to Col. Shahzad Ahmad Khan, but he refused. Muhammad Hanif, in his examination-in-chief, has mentioned that at the time of sale, Ghafoor, Muhammad A.I, Ibrahim, Jaffar and Nazir Ahmad (defendant) were also present; but Ghafoor, Muhammad A.I, Jaffar and Ibrahim have not been examined to corroborate his evidence. In R.S.A. No. 158 of 1988. Jaffar has only specified the name of Ibrahim, who was not produced. Therefore, the solitary statement of D.W.4 in both the cases is not sufficient and adequate, to non-suit the petitioners on the basis of the alleged waiver by their father.
6. The argument, that the D.W.4 and D.W.5 have not been cross--examined on the point of waiver and, therefore, their testimony must be taken to have been accepted by the appellants, is not correct, because they were duly cross-examined and suggestion was put to them, that Col. Shahzad Ahmad Khan, was not present at the time of the sale and was not offered the land to which he declined.
7. Anyhow, in order to non-suit a pre-emptor on the ground of waiver, strong evidence must be led by the defendant/vendee, to establish the above factum. In the instant cases, such evidence is not available on the record and, therefore, the respondents have failed to prove, that Col. Shahzad Ahmad Khan, in any manner had waived the right of pre-emption on behalf of the appellants.
8. There is another aspect of the matter, whether the father of the appellants, who were admittedly minors at the time of the sale, could waive the right of pre-emption on their behalf. The learned counsel for the appellants, has relied upon a judgment of the Division Bench of this Court, reported as Noor Muhammad and 3 others v. Jahangir A.I and 8 others (PLD 1987 Lah. 473), to contend that the right of the minors .To pre-empt the suit property, cannot be given up by their father, even on account of participation in the negotiations of sale and giving an undertaking to the vendee not to institute a suit for pre-emption. In this behalf, relevant paragraph of the judgment, is reproduced as below:-- 12 ---------.Although no specific issue was framed by the trial Court to deal with the abovementioned plea, yet the evidence produced by the appellants in support of their plea was received. Respondents Nos.1 to 3, however, did not produce any evidence in rebuttal probably for the reason hat the appellant's evidence even if accepted by the Court, would not preclude them from exercising their right of pre-emption, as the participation of their father and grant-father in the negotiations of sale and the undertaking given by them at the time of sale that no suit to pre- empt the sale would be instituted, could not affect their right of pre-emption. "
9. To counter the above, the learned counsel for the respondents, has not been able to cite any case-law from our jurisdiction, but to meet the aforesaid judgment, has placed reliance upon Sadhu Wahab and others v. Aladad Khan (Civil Judge No. 1 Punjab Record 1) and Sham Singh v.
Suhel Singh (No. 143 Punjab Law Reported 1913): I am afraid, these judgments are not applicable, as those are based upon the Punjab Pre--emption Act II of 1.905 and are not under the Punjab Pre- emption Act, 1913. Even otherwise, as held in the judgment of Sham Singh (supra), it has been laid down that a pre-emptor, who claims under the proviso to section 11 of the Punjab Pre-emption Act, 1905, is bound by the waiver of his father although, as pointed out in No. 155 PWR 1911 = 7 PR 1912, it is not so in cases governed by section 12 of the Act. Learned counsel, for the respondents, has failed to show if, there is any provision analogus to proviso to section 11 of Punjab Pre-emption Act, 1905, in the Punjab Pre-emption Act, 1905, in the Punjab Pre-emption Act, 1913, so as to preclude the appellants on the basis of the waiver of their father.
10. In view of the above, and following the law laid down in Noor Muhammad and 3 others (supra), conceding, without holding that father of the appellants waived to pre-empt the sale, but even if so, it would only be to the extent of his own rights and not qua the plaintiffs, who were the minors, and he in law had no authority to waive the rights of the appellants. It may be observed, that it .Is not the case of the respondents, that the pre-emption suit was benami and for the benefit of Col. Shahzad Ahmad Khan, therefore, the learned Appellate Court, has seriously erred in law to non-suit the appellants on the plea of waiver, furthermore, the compromise in the case of Ibrahim and withdrawal of the suit, would have no reflection on the present litigation.
11. Learned counsel for the respondents, has also attempted to argue, that the appellant's father, Col. Shahzad Ahmad Khan, had not given any evidence in the affirmative, but appeared in rebuttal, therefore, his statement to prove the superior right of pre-emption, cannot be taken n consideration, suffice it to say, that the respondents have not filed any on appeals/objections to the judgment of the learned Appellate Court in behalf, because this stance of the respondents, was repelled by the Court appeal. Moreover, at the time of the recording of the statement of P. W.2, objection was raised, that he cannot depose in the affirmative. Consequently the respondents at this stage, cannot be allowed to raise a plea, which h even not found favour with the Court of appeal.
12. In view of the discussion made above, by allowing these appeals the judgments and decrees of the Court in appeal are set aside, and those of the trial Court are upheld. The appellants are directed to deposit with the tri Court, the pre-emption money, as has been determined by the said Court in the decrees, within a period of 15 days, from today.