NASEER AHMAD vs ARSHAD AHMAD

ORDER

' ASLAM RIAZ HUSSAIN, J.-Naseer Ahmad petitioner, seeks leave to appeal against the judgment of the learned Single Judge of the Lahore High Court, dated 26-10-1983, dismissing his R. S. A. In a preemption matter.

2. The facts giving rise to the petition are, briefly, that Arshad Ahmad (respondent herein) purchased 35 kanals and 6 mar/as of agricultural land from one Haider, vide Mutation No, 1266, dated 30-4-1973 in Vllage Garh Tehsil Samundari, District Faisalabad, for Rs, 16,000. Nasir Ahmad (petitioner), however, filed a suit for pre-empting the sale on the ground that he was collateral of the legal heirs of the vendor. He alleged further that the sale price of the land in question was Rs, 8,000 and that the amount of Rs, 16,000 had been shown as its price fictitiously. The suit was resisted by Arshad Ahmad defendant-respondent (vendee), who asserted, inter alia, that Haider (the vendor) had first offered the land for sale to Nazir Ahmad petitioner for Rs, 16,000 through Panchayat, but the latter had refused to buy it. He denied that the price of the land in question was Rs, 8,000 and stated that it had been correctly, shown as Rs, 16,000.

Seven issues were framed on the pleadings of the parties out of which the one relevant issue for the purpose of this petition is Issue No, 2 which read as follows :- "Whether the plaintiff had waived his right of pre-emption?"

' The petitioner pre-emptor only appeared himself in support of his plaint and produced no other evidence. As against this, respondent-defendant produced 6 D. Ws. To rebut the plaintiff's allegations. They also stated that the vendor had offered the land in question, for sale to the plaintiff at the same price through a Panchayat, but he had refused to purchase it. The learned trial Court decided the aforementioned issue against the plaintiff on the ground that since no notice had been given by the vendor under section 19 of the Punjab Pre-emption Act, 1913, the evidence that Haider (the vendor) had first offered the land in question to Nazir Ahmad pre-emptor at the same price (i,e, Rs, 16,000) on which he subsequently sold it to the respondent-defendant, was not sufficient for giving a finding that the petitioner-pre-emptor had waived his right of pre-emption.

The trial Court; therefore, decreed the suit.

3. Feeling aggrieved Arshad Ahmad filed an appeal before the District Judge who concurred with the finding of the trial Court and dismissed the appeal. Arshad Ahmad .Then filed an R. S. A. Before the High Court. It was heard by a learned Single Judge who accepted the same and reversed the same finding of the two Courts below and dismissed the suit in the light of the judgment of this Court in Bagri and 4 others v. Salehon and 3 others .

' Naseer Ahmad petitioner has, therefore, filed the present petition for leave to appeal.

3. We have heard the learned counsel for the petitioner at some length.' The main contention urged by him was that the learned High Court has not correctly understood and applied the dictum of this Court in the case of Bagri and 4 others, wherein (according to him) it was held that in the absence of any notice as prescribed under section 19 of the Punjab 'Pre-emption Act, 1913, no question of foreclosure of the right of pre-emption can arise.

4.

5. We are afraid we cannot agree with this contention.

' The learned High Court Judge has rightly followed the principle laid down by this Court in Bagri's case (supra) which has been summarised by the Court itself; the relevant portion whereof reads as follows :--- "Right of pre-emption, however, can be waived before the actual sale either by express refusal to purchase the property or by a clear conduct on the part of the plaintiff, showing that he is not interested in the purchase of the property.

' This is consistent with the principle of foreclosure of right of preemption as envisaged in section 19 of the said. Act."

' The petitioner's counsel contended further that since no right of preemption had accrued to Nasir Ahmad petitioner till after the sale of the land by the vendor, he cannot be said to have waived it by refusing to' purchase the land in question when offered to him before the sale thereof to the present respondent. We are, however, not inclined to agree with this submission. The learned High Court has rightly understood the dictum of this Court which has been discussed in. Paragraph 5 of the impugned judgment in the following words :- -The observation of the trial Court that the evidence produced by the defendant was not sufficient to bar any preemptor from filing a suit is arbitrary in the context of the term "as the same has been judicially interpretted. It is an intentional relinquishment of a known right. It may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right."

This Court has itself observed in Baqri's case that waiver by conductl4 is consistent with the principle of foreclosure of the right of pre-emptionl as envisaged by section 19 of the Act.

It would be noticed that the law has itself provided a procedure. Through sections 19 and 20 of the Pre-emption Act, whereby the right o pre-emption can be foreclosed even before the sale takes place. It cannot, therefore, be urged that such a right cannot be waived at all till such time as it comes into existence, i. e. Till after the vendor has sold the land in question to the vendee. Pre- emption being a predatory right in nature, we are of the view that Courts should place a broad and beneficial interpretation, on the aforementioned sections and the principle of waiver arisin therefrom, rather than trying to whittle down, through hyper-technical arguments, the claim of the defendant-vendee that the pre-emptor who w associated with the sale proceedings, or had taken part in the auction, had waived his right to purchase it either by refusing to buy it at the pri at which1 the land was offered to him or even by refraining from biddin the same (if not higher) price than the offered by the highest bidder at an auction.

7. It is universally accepted that pre-emption is a piratory right, who a person plugs in his claim to purchase a certain piece of land or propert after another person has purchased it. There is no dearth of cases, in actua practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come for ward to purchase it at that time. They allow another person to purchase it , wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object (as appears to be the intention in the present case) to obain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been ehnanced manifold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for pre-emption, which cannot but lead one to assum that there was collusion between the two. We feel that such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend 20 years of his life in litigation and incur huge expenditure which was in many cases even more than the actual price of the land or the property at the time of the sale or auction. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. The latter does not, therefore, deserve relief through Courts of law.

' As a result of the above discussion we feel that there is no merit in this case. The petition is consequently dismissed. PLD 1972 SC 133