FAZAL AHMAD Versus MUHAMMAD AKRAM

ORDER

1. On 10‑3‑1980 Abdul Rahim and Bashir Ahmad filed a suit for pre‑emption against Raees Sohanra, predecessor‑in‑interest of Fazal Ahmad, Anwar Khan, Mst. Buchal and Sh. Abdul Rehman on the basis of his being co‑sharer in Khata. The suit was resisted whereon 5 issues were framed. The parties produced their evidence. The learned Civil Judge Ist Class, Ahmadpur East decreed the suit on 7‑12‑1985. Feeling aggrieved thereby, the petitioners filed appeal which was dismissed by the learned District Judge, Bahawalpur on 9‑12‑1987, hence this revision.

2. Before me, the learned counsel has challenged the findings of the Courts below on issue No.2 which is as under:‑

2. "Whether plaintiffs are estopped by their words and conduct from filing this suit? O.P.D.

3. Learned counsel for the petitioners relied on A I R 1929 All. 645, A I R 1929 Lah. 265 and P L D 1984 SC 403, to contend that since the pre‑emptors Abdul Rahim and Bashir Ahmad were present at the time of transaction of the sale of suit land between Sh. Abdul Rehman, vendor and Raees Sohanra, Anwar Khan and Mst. Buchal, the vendees and had specifically refused to purchase the property, therefore, they were estopped from filing the suit for pre‑emption; that the trial Court has misread the evidence of three witnesses namely Sardar D.W.1, Saeed Ahmad D.W.2 and Fazal Ahmad D.W.3.

3. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. I find that the petitioners /defendants produced three witnesses to prove waiver estoppel. Sardar D.W.1 stated:‑

4. Saeed A hmad D . W.2 stated :‑

5. Fazal Ahmad D.W. 3 stated:

6. I am of the view that the aforesaid evidence produced by the defendants does not make out a case of valid waiver because the offer did not contain the specific price at which the vendor was willing to sell or the price which the vendees were ready to pay. Furthermore, there is nothing in evidence to show that the offer came from vendor. It is by now well settled that in order to constitute a valid waiver of the right of pre‑emption, the offer should be to the effect that the vendor wished to sell the land; that the vendees or some other person was ready to pay the fixed amount and if the pre‑emptor wished to exercise of his right of pre‑emption, he could purchase the property at the same price. The pre‑emptor cannot be l deemed to have waived his right when there was an offer in general terms by vendee or even vendor of his intention to sell the property to a stranger. Mere refusal to purchase land does not amount to c waiver of the right of pre‑emption. The evidence produced by the petitioners/ defendants does not qualify the tests laid down by the superior Courts for the proof of waiver. Further‑more, issue of waiver is an issue of fact. It was within the jurisdiction of the Courts below to make independent assessment of the evidence. The Courts below have given sound and cogent reasons in support of their decisions on the issue of estoppel. Learned counsel for the petitioners has also not been able to point out any misreading of evidence by the* Courts E below. The judgments of the Courts below do not suffer from illegality or material irregularity. The case law relied upon by the learned counsel is quite distinguishable.

7. For what has been said above, there being no merit, the' revision is dismissed in limine.

8. M.Y.H./F‑68/L Petition dismissed