HASTAM KHAN Versus GHAZAN KHAN
Muzammil son of Dilbar Khan since dead and survived by his legal representatives respondents No.2 to 5 herein, was owner of the suit land, who sold the same to Haji Hastam Khan and Tahmash Khan sons of Masti Khan by sale‑deed registered on 24‑7‑1974 for Rs.6,000 but a fictitious sale price of Rs.50,000 was mentioned in the deed. Mst. Dil Afroza claiming to be a co‑sharer in the said land instituted a suit for pre‑emption in the Court of Senior Civil Judge, Peshawar on 23‑7‑1975. The suit was contested by the defendants therein and the learned trial Judge framed the following issues:‑
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaint is bad according to the Law Reforms and liable to be dismissed?
(3) Whether the suit property has been purchased by defendants No.2 and 3 for Rs.50,000.
(4) What is the market value of the suit property?
(5) Whether the plaintiff has got superior right of pre‑emption?
(6) Relief.
2. It appears that Mst. Dil Afroza plaintiff died during the pendencyo of the suit and by order No. 56, dated 13‑5‑1984 her legal representatives Haji Ghazan Khan etc. were brought on the record and they continued contesting the suit. They are respondents No.l to 4 herein. Subsequently Haji Ghazan Khan one of the legal representatives of Mst. Dil Afroza also died and respondents 1 to 10 herein are his legal representatives. The learned trial Judge after recording evidence as was produced by the parties decided that the pre‑emptor being a co‑sharer was possessed of superior pre‑emptive right as against both the vendees who could not claim such right and he granted a decree in favour of the pre‑emptor vide judgment, dated 3‑10‑1985. The aggrieved vendees filed an appeal in the Court of the learned District Judge, Peshawar which was dismissed on 7‑4‑1986. Hence the present revision petition.
3. 1 have perused record of the case and have also heard learned counsel for the parties at length.
4. The learned counsel for the petitioners urged two‑fold ground, in support of the revision petition, firstly, that Haji Ghazan Khan etc. legal representatives of the original pre‑emptor Mst. Dil Afroza were also co‑sharers in their own right in the suit land and they had not cared to pre‑empt the sale transaction and it was only Mst. Dil Afroza who brought the suit for pre‑emption and as such the legal representatives of Mst. Dil Afroza had waived their right of pre‑emption and they could not be allowed to get the same benefit as legal representatives of the pre‑emptor; secondly, it was contended by the learned counsel that the principle of sinker as laid down in section 18 of the N.‑W.F.P. Pre‑emption Act, 1950 (hereinafter to be referred as the Act) was also involved in the sense that by waiving their right of pre‑emption the legal representatives of the original pre‑emptor could rot claim better title than the vendees.
4. On the other hand the learned counsel for the respondent‑‑legal representatives of the original pre‑emptor has contended that the right of pre‑emption is heritable and the legal representatives had claimed this right not in their independent capacity but as heirs of Mst. Dil Afroza and as such the question of waiver did not arise.
The learned counsel had further contended that Mst. Dil Afroza had died during the pendency of the suit and this being a new point was neither pleaded during the trial nor in the appeal and it had been for the first time taken up in the revision petition before this Court and this being a new point having been taken up at the time of revision only could not be allowed to be pleaded.
5. I will first take up the first point of the learned counsel for the petitioners and coupled with the same is the first contention of the learned counsel for the respondent‑legal representatives. In so far as the question of waiver by the heirs of Mst. Dil Afroza is concerned, no doubt according to the revenue record they are also co‑sharers in the suit property and by not filing the pre‑emption suit or by joining as pre‑emptors with their mother Mst. Dil Afroza they had waived their right of pre‑emption and in this respect Mr. Ghulam Naqashband counsel for the petitioners has relied upon the case of Muhammad Bakhsh v. Safdar Hussain and others 1986 S C M R 300 and Falak Stier v. Muhammad Hanif P L D 1987 Lah.
91. In both these judgments it has been held that if a pre‑emptor has done anything in connection with the sale transaction he is deemed to have waived his right of pre‑emption and is estopped by his conduct to subsequently pre‑empt the sale transaction. Mr. Ghulam Naqashband has also relied upon the case of Syed Iltaf Hussain v. Dr. Muhammad Din P L D 1985 Lah. 380 wherein it has been held that waiver is intentional relinquishment of a known right and such act may result either from positive act of relinquishment or from conduct from which such relinquishment of right could be inferred. I am afraid this is not the real point in issue in this case. It is not a waiver simpliciter. Actually in the present suit the heirs of Mst. Dil Afroza have not claimed right of pre‑emption in their own independent right but they 1A were brought on record as heirs of the pre‑emptor. Needless to say that after the death of the original pre‑emptor her heirs have become co‑sharers in the suit land by virtue of inheritance from the original pre‑emptor and in that capacity they had continued with the suit which was instituted by their mother during her lifetime. It can, therefore, be presumed without any fear of contradiction that the legal representatives had dual capacity; firstly, they were themselves co‑sharers in the suit land; and secondly, they again became co‑sharers therein by inheritance after the death of their mother. As I have already pointed out that they had not originally filed a suit for pre‑emption and to that extent they are deemed to have waived their right of pre‑emption. However, the matter does not end here. It is now well‑settled law that the right of pre‑emption is attached with thus land and it is heritable as well. In this connection I draw benefit from the case of Allah Dad v. Hukam Dad P L D 1960 Lah. 900 and from the case of Muhammad Nawaz v. Azizur Rehman P L D 1984 Pesh. 244. I am, therefore, of the confirmed opinion that al right to sue for pre‑emption upon a cause of action accruing to a; person in his lifetime passes at his death to his successors on their inheriting the land but does not pass on to a successor in case of voluntary transfer. It is thus clear that the right of pre‑emption is heritable after the institution of the suit. Here I may with great) respect to my learned brother Abdul Karim Kundi, J. reproduce the following paragraph from his judgment:‑
"Under section 4 of the N.W.F.P. Pre‑emption Act, 1950 the right of pre‑emption has been defined to mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of the sales of such land or property. Under section 16 of the Act, the pre‑emptor is required to have a subsisting right of pre‑emption till the time of decree. The pre‑emptor should possess superiority of pre‑emptive right at the time of sale, institution of the suit and to continue with a subsisting right of pre‑emption till the time of decree."
In so far as the question of sinker is concerned I am afraid, although Mr. Ghulam Naqash-band had relied upon the case of Muhammad v. Raz Gul P L D 1972 Pesh. 146 wherein it has been held as follows:‑
"Section 18 of the N.‑W.F.P. Pre‑emption Act, 1950 pre supposes the extinction of a right of pre‑emption in a joint suit of pre‑emptors, wherein if one of them had no such right of pre‑emption his joining in the suit destroys the right of pre‑emption of the other pre‑emptor or pre‑emptors by the doctrine of sinker Section 21, however, pre‑supposes the absolute forfeiture of a solitary pre‑emptor if he is found to have committed any positive act in the completion of a sale. Thus if a person, who has a right of pre‑emption in respect of the land, negotiates a safe in favour of the original vendee, he will be considered to have forfeited his right absolutely and for ever."
But this is not the point involved in the present suit. All the legal heirs of the original pre‑emptor had become co‑sharers due to inheritance and the question of one or other of them being in possession of an inferior right of pre‑emption than the others did not arise. It is not a case of sinker and the provision of section 18 of the Act are not attracted to the case.
7. In so far as the objection of Mr. Abdul Bari Khan learned counsel for the respondent legal representatives is concerned, it has been conceded by Mr. Ghulam Naqashband that the objection about waiver has for the first time been taken in revision in this Court whereas it was available even at the stage of trial where neither any application for amendment of the written statement was made nor was it pleaded at the time of arguments. This point was also not taken up before the appellate Court. However Mr. Ghulam Naqshband has contended that the question of waiver is a question of law as laid down in section 21 of the Act and it could be taken up for the first time in the revision before this Court and in this respect he has relied upon the case of Muhammad Aslam v. Ditta P L D 1957 (W.P.) Lah. 538. On the contrary Mr. Abdul Bari has drawn my attention to the case of Abdul Hamid etc. v. Ghulam Rasool 1981 S C M R 1054 wherein the plea of waiver having been raised for the first time in the Supreme Court, and not having been taken up before the High Court, was not allowed to be taken up by the Hon'ble Supreme Court. Even otherwise the contention of Mr. Ghulam Naqashband that waiver is a question of law is not tenable for the reason that being based on facts, for which evidence is necessary, waiver is more of a question of fact than of law. I am, therefore, of the opinion that the point of waiver could not be taken up by Mr. Ghulam Naqshband in this revision petition.
8. For the aforesaid reason I would dismiss this revision with no order as to costs.
S.Q. /557/P Revision dismissed.