MUHAMMAD SHAFI Versus TAJOO
ORDER
M.S.H. QURAISHI, J. ‑‑A suit brought by Tajoo respondent to pre‑empt the sale by Mumtaz vendor, in favour of the petitioners, was dismissed but Tajoo's appeal was accepted and his suit was decreed. The petitioner's revision before the High Court having failed, they have moved this petition for .leave to appeal.
2. The first contention raised is in regard to the status of tenant claimed by the petitioners, which claim was rejected by the appellate Court as also the High Court. The point has been discussed by these two Courts at length and we are satisfied that their appreciation of the evidence on this question of fact leaves no scope for interference. The second contention that the suit was Benami for the benefit of Baboo Idrees, the finding on which has also gone against the petitioners, is not pressed before us.
3. The third and the last contention relates to waiver on the part of the respondent /pre‑emptor. In this connection reference has been made to the evidence of the vendor (D.W.3) who stated in the cross-examination that he and the pre‑emptor are real brothers, living in the same house, and that it was the pre‑emptor who had negotiated the deal with the petitioners, This conduct on the part of the pre‑emptor, according to learned counsel for the petitioners, operated as estoppel and amounted to waiver.
4. We find that the point though made subject‑matter of issue No. 5, had not been pressed before the trial Court, which accordingly decided it against the petitioners. Before the appellate Court, too, the point had not been pressed which is clear from the observation of that Court that "No other point was urged in the appeal". The points urged there related only to the question of the petitioners being tenant and the suit being Benami. The High Court, too rejected the plea fort the reason. Inter alia, that "there is nothing on record to show that' the question of waiver was at ell pressed". In the circumstance, we are not satisfied that this is a fit case for grant of leave. The petition is dismissed.
M.I. Petition dismissed.