' MUNIR A. SHEIKH, J.---This petition is directed against the judgment dated 19-2-1998 whereby revision petition filed by the respondents/plaintiffs against the judgment dated 26-4-1983 of the first appellate Court has been accepted and the judgment dated 18-2-1980 of the trial Court by which the suit filed by the said respondents had been decreed restored.
2. Facts of the case are that land measuring 8 Kanals, 18 Marlas was sold through registered sale- deed, dated 17-11-1971 by Manzoor Hussain Shah, Maqbool Shah and Ghulam Ali to the petitioners.
Riaz Hussain Shah deceased, predecessor-in-interest of the respondents filed a suit on 16-11-1972 to pre-empt the said sale on the ground that he was collateral of the vendors and co-sharer in the Khata. The suit was contested by the petitioners/vendees on the grounds that the plaintiffs were estopped from .Filing the suit for pre-emption. On this ground it was pleased that he being Lambardar of the village was present at the time of sanctioning of the mutation and had indentified the parties as Lambardar. The trial Court framed Issue No,1 which is reproduced below-- - "(1) Whether the plaintiff has no locus standi to file the suit?"
' Subsequently, in order to put the plea of estoppel in issue, Issue No,1-A was framed which is also reproduced below:-- "(1-A) Whether the plaintiff is estopped by his conduct to file the suit? OPD"
3. The trial Court after considering evidence of the parties on the said two issues held that the facts established on the record did not constitute estoppal or waiver of the rights of pre-emption by the plaintiff and not observe in judgment dated 18-2-1980. The appeal filed by the petitioners was, however, accepted by the learned Additional District Judge Toba Tek Singh through judgment dated 26-4-1983. It was held that it had been proved on the record that the plaintiff had waived the right of pre-emption or was estopped from filing the suit. The suit was consequently dismissed. The revision petition filed by the respondents has been accepted through impugned judgment, dated 19-2-1998 by which the judgment dated 26-4-1983 of the First Appellate Court was set aside and the judgment and decree passed by the trial Court was restored.
4. Learned counsel for the petitioner submitted that findings of facts based on perusal of the evidence of the parties by the First Appellate Court could not have been set aside by the learned Judge in Chambers of the Lahore High Court under section 115, C.P.C. Merely because a different view could possibly be taken. Therefore, the impugned judgment suffers from legal infirmity and jurisdictional defect.
5. We have examined the judgment of the High Court and found that it has been specifically held that the findings of the First Appellate Court suffered from misreading and non-reading of the evidence on the record. There is no cavil with the proposition that findings of the fact recorded by the First Appellate Court duly based on appraisal of evidence could not be interfered with under section 115, C.P.C. Even if on reappraisal a different view could be taken. It has been consistently held by the superior Courts that such findings could have ever been interfered with if the same had proceeded upon a misapprehension or was liable to be set aside on the ground of misreading and non-reading of material piece of evidence which would fall within the ambit of clause (c) of section 115, C.P.C. Which is to the following effect:-- "(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity."
6. In order to ascertain whether the opinion of the High Court that the First Appellate Court had misread or misconstrued the evidence on the record we have scrutinised the evidence ourselves.
The petitioners examined D.W:2 Noor Hussain, D.W.3 Akbar Ali and Qutub Shah one of the vendees as D.W.4 in support of their plea of estoppal and waiver of right of preemption by the deceased plaintiff. D.W.2 Noor Hassan in his statement stated that Riaz Hussain Shah and his Bratheri was asked to purchase the land if they were willing to do so, but they refused to do so as they did not have the requisite amount of money with them. However, Qutub Shah one of the vendees appeared twice as witness, for the first time when Issue No,1 was framed and also after the framing of Issue No,1-A. In his both statements he only stated that he asked the Syeds to purchase the land and went to Riaz Hussain Shah with other Syeds and he was asked to purchase the land but he refused to do so. He did not state in his both statements that Riaz Hussain Shah deceased plaintiff got the bargain settled. It may be observed that a great deal of stress was laid, on the plea that Riaz Hussain Shah deceased plaintiff had got the bargain struck in order to prove waiver of the right of pre-emption. Though the evidence of D.W.5 Khuda Bakhsh and D.W.7 Noor Hussain is to that effect but Qutub Shah, as observed above when appeared twice did not state that the bargain was got struck by Riaz Hussain Shah. Since Qutub Shah had not stated so, therefore, the evidence of other witnesses which is of a corroborative nature cannot be given credence for direct evidence on the point was of Qutub Shah, vendee, in which no such fact was stated, therefore, it was rightly held that the First Appellate Court had ignored the material piece of evidence in the case and misread the evidence of other witnesses which is in our view could not be considered in the absence of any such plea raised by one of the vendees in his statement.
7. The learned counsel for the petitioners submitted that plaintiff Riaz Hussain Shah was present at the time of sanctioning of the mutation and had identified the parties, coupled with the circumstances that earlier he was asked to purchase the land, therefore, these circumstances were sufficient to prove that he was estopped from filing the suit. We are afraid this argument is based on erroneous assumption that mere presence of the pre-emptor at the time of attestation of mutation and even to act as witness in the bargain was sufficient to prove the waiver of right of pre-emption, or could constitute estoppel, which is contrary to the firmly settled law by superior Courts. It has come in the evidence of petitioner himself that as Lambardar he was duty bound to be present at the time of sanctioning of the mutation and if he had refrained from doing so he would incur the risk of his removal from the Office of Lambardar. It is also well-settled law that mere presence of the pre-emptor at the time of settlement of bargain or that he was marginal witness of the sale would not be sufficient to stop him from filing the suit for pre-emption. The evidence of alleged offer made to Riaz Hussain to purchase the land is contradictory in material terms and cannot be accepted.
8. For the foregoing reasons the impugned judgment does not suffer from any legal infirmity or jurisdictional defect and the case squarely fell within the ambit of clause (c) of section 115, C.P.C.
Accordingly, this petition having no merits is dismissed and leave refused.