' By virtue of sale Mutation No,956 attested on 18-1-1999, suit-land (fully specified in the head note of the plaint) situate in Mouza Ranwal, Tehsil and District Tank, owned by Inayatullah, was purchased by Khyzer Hayat and his brothers, defendants for ostensible sale consideration of Rs,50,000.
2. Muhammad Ali Khan, plaintiff, on 4-5-1999 instituted suit in the Court of Senior Civil Judge, Tank, to enforce his right of pre-emption in respect of suit-land, asserting superior right of pre-emption qua defendants. The plaintiff claimed to have learnt about the sale transaction on 17-2-1999 through Umar Daraz son of Abdullah and made Talbs immediately. The suit was contested by the defendants who filed their written statements, denying the averments of the plaint. In view of the pleadings of the parties, following issues were farmulated:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff has fulfilled the obligations of Talbs under section 13 of the Pre-emption Act, 1987 and notice given if so within time?
(3) Whether the plaintiff has got superior right of pre-emption to the suit property?
(4) Whether the sale consideration mentioned in the mutation has been fixed in good faith and actually paid, if not, what is the market value of the suit property?
(5) Whether the suit of the plaintiff is within time?
(6) Whether the plaintiff is entitled to the decree, prayed for in the heading of the plaint?
(7) Relief.
3. After recording the evidence produced by the parties. Learned Senior Civil Judge, Tank vide judgment and decree, dated 16-4-2001 dismissed suit holding that at the time of sale, plaintiff and his brother Inayatullah, vendee, were present and on hearing the sale transaction on 17-1-1999, plaintiff was bound to express Talb-e-Muwathibat and send notice of Talb-e-Ishhad within 14 days but he deliberately avoided and sent notice on 18-2-1999. An appeal was preferred there against before learned District Judge, Tank who accepted the same by his judgment, dated 3-6-2002, set aside the impugned judgment and decree and allowed suit on payment of Rs,50,000 as sale price of suit-land holding that 'the requirements of Talbs were fulfilled in accordance with law and that the observation of the learned trial Court that the appellant had the knowledge of the sale transaction on the day of attestation of mutation, is logically not correct'. This has led the petitioner to file instant Civil Revision under section 115, C.P.C.
4. Confining his arguments to Issue No,2, Mr. Sanaullah Shamim Gandapur, Advocate for the petitioner bitterly criticized the impugned judgment and decree of learned Appellate Court and attempted to argue that the suit transaction was concluded in presence of the respondent and his brother Inayatullah, vendee, wherein an impression was given that respondent was not interested to purchase suit-land but this fact was excluded out of consideration by. The learned Appellate Court and the element of waiver has been categorically omitted which has resulted in manifest injustice.
5. Mr. Gauhar Zaman Khan Kundi, Advocate for the respondent, on the other hand, supported the impugned judgment and decree with reference to the reasoning given by the learned District Judge in his respective judgment maintaining that finding returned on Issue No,2 by the learned Appellate Court is supported by actual material on record and warrants no interference of this Court in its revisional jurisdiction. To substantiate the pleas, he placed reliance on Muhammad Nawaz through his Legal Heirs v. Allah Bakhsh and another 1993 M LD 783 (Lahore) and Haji Ghulam Farid and 9 others v. Haq Nawaz and 93 others 2004 M LD 726 (Lahore)..
6. It is settled proposition of law in pre-emption cases that pre-emption right cannot be exercised unless and until the pre-emptor has performed the ceremony of Talb-e-Muwathibat immediately on hearing the sale. The delay in performing the ceremony is fatal to that right. When Talb-e- Muwathibat is not made instantly on coming to know of the sale, the right of pre-emption is lost, a short delay would not be excused as held in Muhammad Ramzan v. Lal Khan 1995 SCM R 1510.
7. It needs no reiteration that right of pre-emption is lost by its waiver by the pre-emptor. Waiver is an intentional relinquishment of a known right by positive act, conduct or omission indicating an inference of abandonment/relinquishment/acquiescence,. It essentially turns on appraisal of oral evidence and its credibility. It is not denied that to deprive a person of any legal right that he possesses, there must be clear and cogent evidence on the record justifying that course and the mere oral statements of a few witnesses deposing to certain circumstances from which it may be possible to infer that the prospective pre-emptor had knowledge of the sale would not be enough to prove that he had positively relinquished the enforcement of his right. In this view of the matter, I am fortified by the observations made in Abaid-ur-Rehman and others v. Mehmood and others 1999 SCM R 201, Nazar Hussain Shah and 2 others v. Mst. Khurshid Bibi and others 2002 SCM R 49 and Jam Pari v. Muhammad Abdullah 1992 SCM R 786.
8. In the case of Mustaqeem v: Sher Bahadur PLD 1962 (W.P.) Pesh. 14, waiver in matters of pre- emption was defined as follows:- ' "Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of positive act or relinquishment or of conduct such as would warrant an inference of relinquishment of the right. To deprive a person of any legal right there must be clear and cogent- evidence on record justifying that course. One and the same person may possess two separate character, one private, and the other representative of the rights of others, and a representation made by him in one character is not binding on him in the other. In other words, acts done by a person in a representative character do not create an estoppel when a claim is made by him in his personal capacity."
9. In this case, I find that there is no evidence of waiver or estoppel creating hurdle in the way of the respondent to exercise his right of pre-emption in respect of suit-land. It is established principle of law that in order to consider estoppel or waiver, cogent evidence of active participation of the pre- emption in the sale negotiation as well as his knowledge with regard to the price settled, his refusal to purchase the land on that price and his express relinquishment of right of pre-emptor amounting to assurance to the vendee that he will not file pre-emption suit, is required, to debar pre-emptor to claim right of pre-emption. No doubt it is true that respondent is real brother of the vendee and per statement of Nasir Khan son of Ghazi Khan (D.W.2), he is shown to have actively participated in the suit transaction but it is equally true that this fact alone cannot be considered a good ground to deprive him of his right of pre-emption which otherwise stands established from the material on record and has not been seriously disputed.
10. It is evident from record that respondent possesses preferential right of pre-emption whereas the petitioners are devoid of this qualification. The respondent has been able to prove the requirements of Talbs as contemplated under section 13 of the N.-W.F.P. Pre-emption Act, 1987 by producing cogent and reliable evidence. The claim of the respondent as set up in the plaint stands established by the material on record. The findings of learned Appellate Court on Issue No,2, subject of controversy, are result of correct appreciation of evidence and call for no interference of this Court in its revisional jurisdiction. The revision petition fails which is hereby dismissed with no order as to costs.