' On the basis of sale Mutation No,646 attested on 28-12-1995, suit-land (fully specified in the head note of the plaint), situate in Mouza Rakh Mandhra, District D.I. Khan was purchased by Masood Anwar, vendee-defendant for an ostensible sale consideration of Rs,6,00,000. Karim Bakhsh, plaintiff, claiming right of pre-emption on the ground of being co-sharer in the suit-land and owner of the adjacent land, instituted suit on 4-3-1996 against Masood Anwar, vendee-defendant. The plaintiff claimed to have learnt about the sale transaction through Fakharuddin son of Shamsuddin on 25-2-1996 at 9-00 a.m. And made Talabs immediately within the statutory period from the date of knowledge.
2. The suit was resisted by the defendant on all grounds legal as well as factual. The pleas of the parties gave rise to the framing of following issues:--
(1) Whether Plaintiff has a cause of action?
(2) Whether the suit is within time?.
(3) Whether plaintiff has fulfilled the requirements of section 13 of N.-W.F.P. Pre-emption Act, 1987 properly?
(4) Whether an amount of Rs,6,00,000 has actually been fixed and paid as sale price of the suit- land?
(5) Whether plaintiff being co-sharer and contiguous owner with the suit property has superior right of pre-emption?
(6) Whether defendant is entitled to Rs,50,000 in addition to sale price of Rs,6,00,000 on account of District Council fee in case of decree in favour of plaintiff?
(7) What is the market value of the suit-land?
(8) Relief.
3. Upon consideration of the evidence adduced by the parties, in support to their respective contentions, learned Civil Judge, D.I. Khan proceeded to hold that plaintiff-respondent possesses superior right of pre-emption qua defendant-petitioner; that the suit was filed within time and that all the legal requirements were fulfilled within the contemplation of section 13 of. N.-W.F.P. Pre- emption Act, 1987. A sum of Rs,6,00,000 was also found to have been fixed and actually paid as sale consideration of suit-land. Having held so, suit was decreed through judgment, dated 2-6-2000.
4. Feeling aggrieved, Masood Anwar preferred appeal thereagainst whereas Karim Bakhsh filed cross-objections in respect of sale price of the suit-land. The learned Additional District Judge-I, D.I.
Khan consolidated the same, partially accepted the appeal and dismissed the consolidated the same, partially accepted the appeal and dismissed the cross-objections by judgment, dated 17-4- 2003. Masood Anwar, petitioner, has come up before this Court in revisional jurisdiction against the judgments and decrees of the Courts below.
5. I have heard at length Mr. Salimullah Khan Ranazai, Advocate for the petitioner and Malik Muhammad Bashir, Advocate for the respondent in the light of material on the file.
6. Learned counsel for the petitioner vehemently contended that both the Courts below erred by deciding the case against the petitioner in favour of the respondent particularly when the pre- requisite of preemption i,e, Talabs were not proved by the respondent in accordance with section 13 of N.-W.F.P. Pre-emption Act, 1987; that the learned Courts below ignored the statement of Patwari in respect of "Roznarncha Waqiati" vide which the copies of register "Haqdaran Zamin" were delivered to respondent on 26-2-1996, rather an application was moved before the trial Court to resummon the Patwari concerned for the verification of delivery of copies to respondent but the application was rejected and revision against the same also failed. However, the learned trial Court directed the petitioner to produce attested copy of "Roznamcha Waqiati" obtained from the concerned Patwari and the same was placed on file which reveals that the attested copies were delivered to respondent on 31-1-1996 and not on 26-2-1996 and that from the copy of Roznamcha Waqiati, it is clarified that the copies were delivered to respondent much prior, therefore, the entire story of Talabs becomes doubtful. The learned counsel added that in the plaint, respondent claims to have obtained knowledge about the transaction in question on 25-2-1996 whereas the above document speaks otherwise and depicts a different picture. In the second limb of arguments, the learned counsel reiterated that per version of the respondent, due to financial constraints, he was not in a position to deposit pre-emption amount in Court and for this purpose, he borrowed money from others with the promise to transfer the suit-land in their favour. He submitted that in this way, the respondent has waived his right of pre-emption as the element of "Zarorat" is missing in terms of section 6 of his right of Punjab Preemption Act, 1991. The submissions of the learned counsel do not carry weight. A perusal of the record would reveal that the Patwaris concerned were re- summoned and examined on various occasions but no question was put to them regarding the document in question i,e, "Roznamcha Waqiati" dated 3-1-1996, Rappat No,146. It may be noted that on one hand, the document has not been exhibited whereas on the other, order passed about it has attained finality. It cannot be brought under discussion at this stage. So far as Talabs are concerned, both the Courts below have concurrently held that the Talabs were made in accordance A with section 13 of the N.-W.F.P. Pre-emption Act, 1987 within the statutory period of limitation' from the date of knowledge and no delay IA was made in bringing the pre-emption suit.
7. The process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under section 115, C.P.C. Is neither permissible nor warranted by law. Interference with a finding of fact of the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Could only be justified if such finding is found to be suffering from misreading of evidence or non-consideration of important and material evidence or the finding is the result of perverse appreciation of evidence on record. High Court while examining a concurrent finding of fact recorded by the Courts below in exercise of its revisional jurisdiction under section 115, C.P.C.
Has to attend to the reasons given by the Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction.
8. The argument of learned counsel for the petitioner that the impugned judgment and decrees of the Courts below suffer from gross misreading-and non-reading of evidence, is not tenable. Both the Courts below have given a concurrent verdict/finding of fact, which cannot be disturbed by this Court in its revisional jurisdiction, unless Courts below while recording finding of facts are show to have either misread the evidence or ignored any material piece of evidence on record or the same is perverse. The following observations were made in Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 by august Supreme Court of Pakistan:-- "The scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. Cannot upset a finding of fact, however, erroneous it may be on reappraisal of evidence and taking a different view of the evidence. Such finding of facts can only be interfered with by the High Court under section 115, C.P.C. If the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing On the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. If the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record. Having stated the above broad principles which would justify interference by a High Court with a concurrent finding of facts recorded by the Courts below, under section 115, C.P.C."
9. The argument that pre-emptor is poor and litigation is financed by somebody else, does not by itself mean that he is acting in the interest of another. In this view of the matter, I am fortified by the authority laid down in Muhammad Amin v. Maqbool 1993 SCMR 498.
10. 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.
11. In the case of Mustaqeem v. Sher Bahadur PLD 1962 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 characters, 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."
12. For the reasons mentioned above, the judgments and decrees of both the Courts below being based on proper appreciation of evidence are not amenable to interference by this Court in its revisional jurisdiction. The revision petition being devoid of force is hereby dismissed with no order as to costs.
Revision .