MUHAMMAD BASHIR Versus ALMA BIBI

1. This is defendants appeal against the judgment and decree of the learned District Judge, Mirpur, dated 14‑4‑1992, whereby the appeal filed by the plaintiff was accepted and the judgment and decree of Sub‑Judge, Dadyal, dated 30‑9‑1989 was set aside and the suit of the ancestor of the respondents (Plaintiffs) was decreed.

2. The Succinct facts giving rise to the instant appeal are that one Muhammad son of Ghulam Muhammad alienated land measuring 26 Kanals 15 Marlas alongwith a mango tree, the detail of which is as under:‑‑

3. Land measuring 16 Kanals 5 Marlas from land 17 Kanals 13 Marlas comprising Survey No.1464,

4. Land measuring 10 Kanals 10 Marlas from survey No.1447 situated at village Behari, Teshil Dudyal, to appellants (defendants) in lieu of Rs.3,30,000. This sale was pre‑empted by the ancestor of the respondents (namely, Hussain) through a civil suit. It was claimed by the (plaintiff) ancestor of the respondents that he has prior right of purchase than the (defendants) appellants because he is a collateral and co -sharer of the vendor while the defendants have no relation with the vendor nor they are the co‑sharers in the Khewat. It was also claimed that the land in dispute was actually sold in lieu of Rs.1,97,000 but Rs.3,30,000 were incorporated in the sale‑deed only for preventing the pre‑emption suit.

5. This suit was contested by the defendant‑appellants.

6. The learned Sub‑Judge, Dudyal, vide his judgment and decree dated 30‑9‑1989, dismissed the suit of the ancestor of the respondents (plaintiff).

7. Feeling dissatisfied from the findings of the learned Sub‑Judge, the plaintiff) ancestor of the respondents, filed an appeal before the learned (plaintiff) Judge, Mirpur. The learned District Judge, Mirpur vide his judgment and decree, dated 14‑4‑1992, accepted the appeal of the plaintiff and decreed the suit in lieu of Rs.3,30,000. Feeling aggrieved from the judgment and decree of the learned District Judge, Mirpur, the intstant appeal has been filed by the defendants.

8. During the pendency of the appeal, respondent (plaintiff, Hussain) died and his legal representatives have been brought on the record and have been impleaded as respondents in the instant appeal.

9. Mr. Nazir Ahmed Ghauri, the learned counsel for the appellants vehemently argued that firstly, the land was offered for sale to the plaintiff (ancestor of the respondents) but he refused to purchase the suit land, then the suit land was alienated to the appellants. The plaintiff has waived his right of prior purchase. It was next contended by the learned counsel for the appellants that this is admitted fact; that the plaintiff refused to purchase the suit land as it has been admitted by the plaintiff in his statement, so the principle of waiver is fully applicable to the facts of the instant case and the suit of the plaintiff was liable to be dismissed on this score. It was further contended by the learned counsel for the appellants that the learned District Judge has failed to consider that the land was sold alongwith a mango tree and a separate price of the tree, Rs.10,000 was assessed and paid, but the plaintiff has not claimed any right of prior purchase on the mango tree. The plaintiff has omitted to sue for the mango tree, so the suit of the plaintiff was liable to be dismissed on the basis of doctrine of partial pre‑emption. It was also contended by the learned counsel for the appellants that apart from the waiver, the plaintiff was estopped from claiming any right of prior purchase on the aforesaid land, after refusing to purchase the same, thus, the judgment and decree of the learned District Judge may be set aside.

10. Controverting the arguments of the learned counsel for the appellants, the learned counsel for the respondents, Ch. Shah Wali Khan, argued that the principle of waiver is not applicable to the facts of the instant case. Although in the instant case, the plaintiff‑pre‑emptor has admitted that this land was offered to him for sale, but this was offered to him five years before the execution of the instant sale‑deed. Now when the vendor proposed to sell the land to the appellant‑defendants, he did not make any offer to the pre‑emptor. It was also maintained by the learned counsel for the respondents that a strict proof for the waiver is required and it can only be proved by cogent evidence. It was the duty of the defendant who pleaded the waiver to prove that the same land on the same price was offered to the pre‑emptor for sale, but there is nothing like such on the file, so it cannot be said that the same land at the same price was offered to the pre‑emptor for sale. It was further contended by the learned counsel for the respondents that the land includes the tree and all other things affixed on the land. He referred towards the definition of the land as defined in the Punjab Pre‑emption Act, Land Acquisition Act and Right of Prior Purchase Act. It was also maintained by the learned counsel that when the suit has been filed for the land then it will be deemed that the suit is also filed for the tree because the tree cannot be separated from the land. The tree cannot exist independently without the land. He further argued that it was not the intention of the plaintiff not to claim the right of pre‑emption on the tree and only to claim the right of prior purchase on the land. The land and the tree, both were sold for Rs.3,30,000. When the plaintiff is willing to pay the entire consideration amount, then it will be deemed that he has also filed the suit for the tree and the land. The principle of partial pre‑emption has no relevancy, particularly when the plaintiff is prepared to pay the full consideration amount which also includes the price of tree. Thus the judgment and decree of the learned District Judge is based on sound and cogent reasonings and warrants no interference.

11. I have heard the learned counsel for the parties and perused the record and given my passionate thoughts to the arguments advanced by the learned counsel for the parties.

12. First, I would like to deal with the proposition that what does the waiver mean? The plain dictionary meaning of the word "waiver" is to "abandon", to "relinquish". Simply the word "waiver" means to relinquish a right or a claim by expressed words or declaration of by some intentional act. The intentional relinquishment of a right is called waiver. There are no hard and fast rules for constituting waiver. It depends upon the circumstances of each I case, and each case is to be decided according to its own peculiar facts. The basic spirit of the waiver is that the pre‑emptor should have a fair opportunity to purchase the property. Waiver as commonly understood, is an intentional relinquishment of a known right. The heart and soul of legal proposition is that the pre‑emptor must have been provided a fair opportunity of purchasing the property. If the purchaser would have been provided a fair opportunity of purchasing the property and he declined to purchase the property, then, of course, the waiver will apply with full force. For proving the waiver, it is enjoined upon the vendee to satisfy that the pre‑emptor in whom the right of prior purchase vests, refused to purchase the land. He relinquished his vested right of prior purchase by his conduct.

13. Now, in the instant case, the question arises whether the vendee satisfied that a fair opportunity for purchasing the suit land was provided to the pre‑emptor (plaintiff) and he refused to purchase it? If the answer is in affirmative, then naturally the plaintiff‑pre‑emptor has waived his right of prior purchase, and now he cannot claim the same right of prior purchase. In the instant case, it has been claimed by the vendee that this land was offered to the pre‑emptor‑plaintiff for sale, but he refused to purchase it. This assertion of the vendee (defendant) was admitted by the pre‑emptor (plaintiff). The statement of the plaintiff was recorded by the trial Court on 9‑8‑1988. In the very outset of his statement in the examination‑in‑chief, he stated that 5 years before the vendor offered him this land for purchase. At that time, his son was suffering from ailment, so he refused to purchase the land. In the cross -examination, it was stated by the pre‑emptor (plaintiff) that it is correct that one year before the execution of the instant sale‑deed, the vendor offered this land to him for sale, but he refused to purchase the land. It was also stated that this land was offered to him for sale at the rate of Rs.20,000 per Bigha.

14. According to him, this land was offered to him for sale at the rate of Rs.5,000 per Kanal. It is clear that the land in dispute was offered to him for sale in lieu of Rs.1,33,000 approximately.

15. The question arises whether in, the presence of the admission of the pre‑emptor, the waiver constitutes or not? I fully agree with the contention raised by the learned counsel for the respondents that for establishing waiver, it is enjoined upon the vendee to satisfy the Court that the same land was offered for sale to the pre‑emptor, but as the contention of the learned counsel for the respondents is concerned, that he should also prove that the land in dispute was offered for sale at the same rate, I do not agree with the learned counsel for the respondents for the following reasons:‑‑

16. Although, various Courts of Pakistan have resolved that for establishing the waiver, it should he proved that the land in dispute was offered for sale at the same price td the pre‑emptor. The entire case‑law of the Pakistan jurisdiction is based on the analogy laid down in section 19 of the Punjab Pre‑emption Act and section 15 of the N.-W.F.P. Pre-emption Act. In suction 19 of the Punjab Pre-emption Act, it has been provided that when any person proposes to sell tiny agricultural land, or any other immovable property of which any person has a right of prior purchase, he may give a notice to such person of the price at which he is willing to sell. Under section 19 of the Punjab Pre‑emption Act, it is mandatory that the price should 6 mentioned in the notice. Same like provisions are of the N.,W.F.P. Pre‑emption Act. Id section 15 of N.‑W.F.P. Pre‑emption Act, it is, also stated that the price should be mentioned in the notice. As the analogy of the waiver is based on the analogy of section 15 of N.‑W.F.P. Pre‑emption Act and section 19 of the Punjab Pre‑emption Act, so the Courts of Pakistan have resolved as such on the basis of the conditions laid down in the aforesaid provisions of the above mentioned Pre‑emption Acts, whereas in section 18 of the Jammu and Kashmir Right of Prior Purchase Act, no such condition is mandatory or provided. According to section 18 of the Jammu and Kashmir Right of Prior Purchase Act, the vendor has only to give a notice of his intention to sell the land. For having the true perception of law, I would like to reproduce section 19 of the Punjab Pre‑emption Act, section 15 of the N: W.F.P. Pre- emption Act and section 18 of Jammu and Kashmir Right of Prior Purchase Act:‑‑

17. " Section 19 of the Punjab Pre‑emption Act :

18. When any person proposes to sell any agricultural land or village immovable property or to foreclose the right to redeem any village immovable property or urban immovable property, in respect of which any persons have a right of pre‑emption, he may give notice to all such persons of the price at which he is willing to sell such land or property or of the amount due in respect of the mortgage, as the case may be.

19. Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property or any part thereof is situate, and shall be deemed sufficiently given if it be stuck up on the Chupal or other public place of the village, town or place in which the land or property is situate.

20. Section 15 of N.‑W.F.P. Pre‑emption Act:

21. When any person proposes to sell any agricultural land, village immovable or urban immovable property, or to foreclose the right to redeem any village` immovable property or urban immovable property in respect of which any person have a right to pre‑emption, he may give notice to all such persons of the price at which he is willing to sell such land or property or the amount due in respect of the mortgage, as the case may be.

22. Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property or any party thereof is situate, and shall be deemed sufficiently given if it be stuck up on the Hujra or other public place of the village, town or place in which the land or property is situated.

23. Section 18 of Jammu and Kashmir Right of Prior Purchase Act:

24. When any person proposes to sell any agricultural land, or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property, or urban immovable property, in respect of which any persons have a right of prior purchase, he may give notice to sell such land or property, or of the amount due in respect of the mortgage, as the case may be.

25. Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property is situate and shall be deemed sufficiently given if it is served in accordance with the provisions of Order V of the Code of Civil Procedure.‑

26. The perusal of the aforesaid three provisions of the Acts clearly show that according to section 19 of the Punjab Pre‑emption Act and section 15 of N.‑W.F.P. Pre‑emption Act, it is necessary for a seller to give a notice of the price at which he is willing to sell to all the persons, who have a right of pre emption, whereas section 18 of Jammu and Kashmir Right of Prior Purchase Act provides that the seller should give a notice to sell the land to the persons having the right of Prior Purchase. The provisions of Jammu and Kashmir Right of prior purchase Act do not contain any stipulation pertaining to the price of land. The entire case‑law developed on the waiver is based on the analogy of sections 18 and 15 of aforesaid Pre‑emption Acts, so the case‑law of the Pakistan jurisdiction has no bearing on the facts of the present case. As stated above, according to Jammu and Kashmir Right of Prior Purchase Act, the only duty of the seller was to give a notice to the persons having the right of Prior Purchase, that he wants to sell the property. Under Jammu and Kashmir Right of Prior Purchase Act, it is not necessary for establishing the waiver to prove that on the same price, the land was offered for sale to the pre‑emptor.

27. Assuming for the sake of argument that if the provisions of the Jammu and Kashmir Right of Prior Purchase Act, would have been like the provisions of Punjab Pre‑emption Act and N.‑W.F.P. Pre‑emption Act and it would have been necessary for the seller to offer the land on the price on which it was sold. Even then the waiver is fully established against the plaintiff f n the instant case for the following reasons:‑‑

28. According to the version adopted by the plaintiff the land was offered to him for sale in lieu of Rs.20,000 per Bigha while the land in dispute was alienated in lieu of Rs.48,000 per Bigha, so the land was offered to the pre- emptor on the lesser price than it was sold, but the plaintiff refused to purchase the land, thus he has waived his right of prior purchase.

29. I fully agree with the contention of the learned counsel for the respondents that a strict proof is required for establishing the waiver, and it can be proved by cogent evidence, but here when it has been admitted by the pre‑emptor that this land was offered to him for sale in lieu of Rs.20,000 per Bigha and he refused to purchase the same, then the waiver has been fully established against the pre‑emptor. I would like to reproduce some portion of the statement of the plaintiff which is as under:‑‑

30. Now, when the plaintiff‑pre‑emptor himself stated that this land was offered to him one year before the execution of the sale‑deed for purchase and he refused to purchase the land, then it is clearly established that same land was offered to the plaintiff‑pre‑emptor for sale a year before the execution of the sale‑deed, on the lesser price, but he refused to purchase the same, so he has waived his right of prior purchase in all respect.

31. As this contention of the learned counsel for respondent is concerned, that this land was offered for the sale to the respondent (plaintiff) 5 years before the execution of the sale‑deed and it was not offered before the execution of the present sale‑deed, carries no substance for the following reasons:

32. As the plaintiff (pre‑emptor) himself stated that a year before the execution of the instant sale‑deed, that land measuring 26 Kanals and 15 Marlas was offered to him for sale, Now when the plaintiff (pre‑emptor) has himself admitted the fact that a year before, the suit land was offered to him for the sale, then this contention of the learned counsel for the respondent that 5 years before this land was offered to him for the sale is without any substance.

33. The further question arises when once the pre‑emptor refused to purchase the land, then whether the vendor was duty bound to offer again the same land to the pre‑emptor before the execution of the sale‑deed? The answer is that when once the vendor offered the land for the sale to the pre -emptor on the lesser rate, then he was not bound to offer again and again to the pre‑emptor. If this practice will be allowed, then it will create a great hardship to the intended seller. Suppose one owner of the land is in urgent need of money, due to the ailment of some family member or some other reason. He wants to sell the land for fulfilling his needs. He goes to the person having the right of prior purchase. He refused to purchase the land. After this, no other customer is willing or available for the purchase of land. After some time, if some customer becomes available, then if he will again indulge in offering the persons having the right of prior purchase. Then if that customer will refuse to purchase or purchase the some other land, then it will create a great hardship to the seller. When one person refused to purchase the land once, then it is very much clear that he has no intention to purchase the land. There is no fun for offering again and again to him the property for the sale. Otherwise it will create a great hardship to the intending seller. They should not be compelled to offer again and again the land for sale to the same person. The law of the Pre‑emption is a law of piracy and no such like free hand should be provided to the pre‑emptors even otherwise, it is against the dignity, honour and conscious of the intended seller to again and again offer the property to a person for the sale.

34. Even otherwise, when the plaintiff has refused to purchase the land in dispute on the lower rate than the rate at which it was sold, then the plaintiff has been estopped from going beyond his refusal and claiming the right of pre -emption on the same land. This view finds support from AIR 1929 All. 531 relevant page 534 which reads as under:‑‑

35. "It seems to us that if a co‑sharer wishes to preserve his right of pre- emption in case of a sale he should not merely refuse to purchase the property on the ground that he had no means to purchase it, but he should make it clear that he is reserving his right of pre‑emption. He cannot be allowed to use unambiguous language indicating an absolute refusal and yet make a mental reservation in his favour to the prejudice of the vendor.

36. In the present case, we are satisfied that the statement made by the plaintiff Rameshar Prasad to Mst. Stern under the special circumstances of this case and having regard to what had happened previously, amounted to an absolute refusal on his part to take the property on the ground that it was impossible for him to raise the money. That flat refusal induced Mr. Stern to enter into negotiations with the vendees who acting upon such representation believed that Rameshar Prasad had waived his right of pre‑emption and that there was no longer any fear of such a suit. In our opinion, the plaintiff is now estopped from going behind his refusal and claiming a right to pre‑empt the property."

37. As the next contention raised by the learned counsel for the appellants is concerned that the plaintiff has not claimed any right of prior purchase on the mango tree, so this suit is liable to be dismissed on the basis of doctrine of partial pre‑emption, carries no substance for the following reasons:‑‑

38. That both the mango tree and land in dispute was sold for a consideration amount of Rs.3,30,000 and the respondent has filed the suit for the land. Although he has not mentioned the word tree in the plaint, but when he is willing to pay Rs.3,30,000, then it seems that he has also filed the suit for the mango tree. If his intention would have not been for the mango tree, then he would have not been willing to pay Rs.3,30,000. It is pertinent to note that in the sale‑deed no separate price of mango tree was stated, so it cannot be said that the‑mango tree has been separately sold. Although some evidence was led by the vendee‑defendant that the price of the mango tree was separately, assessed, but it was included in the price of the land. Now when the price of the mango tree has not been separately mentioned in the sale‑deed, then how the pre‑emptor can gain knowledge that a separate price of the mango tree was assessed and it was paid. This versions of the appellant pertaining to the partial pre‑emption has no merit.

39. The nutshell of the above discussion is that the land in dispute was offered to the pre‑emptor for sale but he refused to purchase the same, so the plaintiff has waived his right of prior purchase, thus this appeal is accepted and the judgment and decree passed by the learned District Judge, Mirpur dated 14‑4‑1992 is hereby set aside. This suit of the plaintiff is dismissed. Keeping in view the peculiar circumstances of the case, no order as to costs.

40. AA./16/HCA

41. Appeal accepted.