ABDUL SHAKOOR PRACHA, J.--- Sajjad Ahmad, respondent herein, filed a suit for possession through pre-emption against Hakim Ghulam Rasool, predecessor-in-interest of the petitioners, on the ground of having superior right of pre-emption being legal heir of the vendor. The disputed land was owned by Muhammad Riaz etc., who alienated it in consideration of Rs.41250/- vide registered sale-deed dated 15.4.1979 in favour of Ghulam Rasool, predecessor-in-interest of the petitioners/defendant. The suit was resisted by the Vendee. In written) statement preliminary objections were raised regarding deficiency in court-fee, estoppel, waiver, limitation and partial pre-emption etc.
2. From the divergent pleadings of the parties, learned Civil Judge, Kharian framed the following issues:-
(1) Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD.
(2) Whether the plaintiff is estopped to file this suit? OPD.
(3) Whether the plaintiff has waived his right of pre-emption if any? OPD.
(4) Whether the suit is collusive? OPD. (5) Whether the suit is barred by time? OPD.
(6) Whether the suit is benami? OPD
(7) Whether the suit is for 1/2 artial pre-emption? OPD.
(8) Whether the plaintiff got superior right of pre-emption? OPD.
(9) Whether the defendant is entitled to recover costs of registration charges for disputed sale in case the suit is decreed against him? OPD.
(10) Whether the description of the suit property is incorrect, if so, what is its correct description.
(11) Relief.
3. The learned Civil Judge vide his judgment and decree dated 14.7.1986 recorded findings on all the issues in favour of the respondent-pre-emptor and decreed the suit. Petitioners, being legal heirs of Ghulam Rasool, vendee, filed an appeal thereagainst, which was dismissed by the learned Additional District Judge, Gujrat vide judgment and decree dated 1.4.1990. Hence this revision petition.
4. The learned counsel for the petitioners has challenged the findings recorded by both the Courts below only on issues Nos. 2 and 3, which were regarding estoppel and that the respondent-plaintiff had waived his right of pre-emption. According to the learned counsel, the findings of the learned Civil Judge as well as of the learned Additional District Judge on the above-stated issues Nos. 2 and 3 are the result of misreading of evidence. He has referred to the statements of Muhammad Riaz, Muhammad Rafiq, Saeed-ul-Haq and Riasat Ali, DWS-2 to 5 and argued that the pre-emptor was present at the time of sale and he had the knowledge about the purchase of the suit property by the vendee and in this view of the matter, the right of pre-emption has been waived by him and he was estopped to file the suit for possession through pre-emption. He has made reliance on the cases reported as Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403), Amanat Ali and 3 others v.
Haji Muhammad Ali (1984 CLC 362 Lah.), Muhammad Bakhsh v. Nisar Ahmad (1985 CLC 1974 Lah.), Atta Muhammad v. Muhammad Aslam and others (1985 M LD 1535), Muhammad Din through his legal heirs V. Taj Muhammad (1989 M LD 4319) and Qamarud Din and 4 others v. Taj Muhammad (1989 M LD 3059). Further argued that both the Courts below have held that pre-emptor Sajjad Ahmad was present at the time when bargain had struck between the vendor and the vendee.
5. Both the Courts below by reading the evidence on the record came to the conclusion that Sajjad Ahmad was present at the time of sale. The Civil Judge on issue No. 2 has recorded a finding:- "It is well-settled law that mere presence of a prospective pre-emptor at the time of sale does not constitute estoppal or waiver on his part."
This finding has been endorsed by the Additional District Judge who relied upon the judgment of the Hon'ble Supreme Court reported as Bawl and 4 others v. Salehon and 3 others (PLD 1972 SC 133) and Fazal Ahmad and other vs. Muhammad Akram (1988 CLC 1001, and held as under:- "Perusal of the testimony of DWs makes it evident that respondent was present at the time of sale transaction but these DWs did not whisper that the vendee asked him to purchase the suit land in lieu of Rs.41250/- and thereafter respondent had assured that neither he would purchase the suit land nor prefer his suit for preemption."
6. Sajjad Ahmad, PW-2, pre-emptor-respondent has admitted in cross-examination that the sale took place in his presence and that the advance amount was paid in his presence. The case of vendee is that Sajjad Ahmad, pre-emptor, was present; he knew about the price of sale and he did not disclose that he would purchase the suit land and in fact he had waived his right of pre- emption. The finding of both the Courts below on issue No. 2 is that Sajjad Ahmad, respondent-pre- emptor was present at the time of sale but it was recorded against the vendee/predecessor of the petitioners, on the ground that the mere presence of prospective pre-emptor at the time of sale does not constitute estoppel or waiver on his part. I am afraid, the finding on issue No. 2 is result of misinterpretation of law. When the respondent Sajjad Ahmad himself admitted that he was present at the time of sale and he stated so while appearing as PW-2 that - bargain was struck in his presence and the DWs-2 to 5 are unanimous on this point that the pre-emptor/plaintiff- respondent had the knowledge as he was present at the time of sale/transaction with the vendee, then the finding on issue No. 2 has been erroneously recorded in favour of respondent Sajjad Ahmad by the learned Civil Judge which has bee illegally endorsed by the learned Additional District Judge. Consistent view of the Hon'ble Supreme Court and this Court is that pre-emptor having definite knowledge of sale actually acquiescing in it taking active participation in completion of sale transaction in favour of vendee. The right of pre-emption is not available to the pre-emptor who through his conduct has waived the right of pre-emption under the law. In case reported as Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403) while interpreting Sections 19 and 20 of the Punjab Pre-emption Act (I of 1913) the Hon'ble Supreme Court observed:- "As a matter of fact, there are cases where the father sells land and his son files a suit for pre- emption, which cannot but lead one to assume that there was collusion between the two. Such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person...."
1985 CLC 1974), this Court set aside the judgment passed by the Courts below because the pre- emptor, who was son of the vendors, was living in the same house and was present when negotiations of sale conducted and it was held that presence of a son naturally posting him with knowledge of transaction made by father. Further it was held that in the circumstances of the case, waiver was estopped and the pre-emptor was not entitled for the decree.
1989 MLD 4319), pre-emptor not only participated but was acting consciously and in a positive manner in approving sale of suit land to vendee, it was held that the pre-emptor was estopped from filing pre-emption suit against the vendee as by his conduct he made the vendee to believe that he would not pre-empt the sale.
1985 MLD 1535) active participation of pre-emptor in negotiations for deal and in transaction of sale itself prove through unrebutted evidence and it was held that the pre-emptor would be deemed to have waived his right of pre-emption in the circumstances.
1984 CLC 362) the pre-emptor participated in bargain was considered waiver on his part to exercise his right of pre-ernption and it was held that he is estopped by his conduct from pre- empting the sale.
7. The learned Civil Judge recorded the finding on issues Nos. 2 and 3 against the vendee-predecessor-in-interest of the petitioners on the ground that mere presence of pre-emptor does not constitute waiver is not correct, and the observation of the learned Additional District Judge on the basis of case reported as Bagri and 4 others v. Salehon and 3 others (PLD 1972 SC 133) that unsuccessful bider is not precluded from instituting the suit for pre-emption, is not applicable to the facts and circumstances of the present case. In that case the sale was not complete and it Was held:- "Until a sale actually takes place, no person can assume to have a right of pre-emption which is not a right in property although it is a vested statutory right."
The Hon'ble Supreme Court held that there may be waiver subject to the following principle emerge from the decisions:-
(i) Right of pre-emption arises on sale of the property in question. This is the general law.
(ii) Right of pre-eruption, however, can be waived before the actual sale either by express refusal to purchased the property or by a clear Conduct on the part of the plaintiff, showing that he is not- interested in the purchase of the property.
From the evidence on record and on the basis of finding of both the Courts below, it is obvious that by a clear conduct on the part of the respondent/plaintiff-pre-emptor, it was proved that he was not interested in purchase of the suit property. No doubt, there is concurrent finding of fact recorded by both the Courts below, but the findings of both the Courts are the result of misreading of evidence and misinterpretation of law of waiver and estoppel, which need interference and is liable to be set aside in exercise of revisional jurisdiction under Section 115, CPC. In this regard reference can be made to the case reported as Samar Gul and others v. Mohabat Khan and others (2000 SCM R 974 and 986), wherein it was observed as follows:- "It is trite- law that if the concurrent findings of the Courts below are the result of misreading of evidence on the record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under Section 115, C.P.C."
For what has been discussed above, the findings recorded by both the Courts below on issues Nos.
2 and 3 are held to be the result of misreading of evidence and mis-interpretation of law. Both the Courts below have committed material irregularity and illegality while decreeing the suit of the respondent-pre-emptor. The findings on issues Nos. 2 and 3 of both the Courts are reversed.
Consequently, the judgment passed by the Civil Judge dated 14.7.1986 and the judgment of the learned Additional District Judge dated 1.4.1990 are set aside. Resultantly, the suit of the respondent-plaintiff is dismissed with costs.