MUHAMMAD BAKHSH vs NISAR AHMAD

' This Second Appeal arises out of a suit for possession through pre-emption filed by Nisar Ahmad to pre-empt the sale of the land in dispute made by his father, named, Habib Ahmad alias Habibullah to the appellants-defendants. The suit was contested by the appellants on the sole ground of waiver by asserting that the transaction was finalised with the approval of the pre-emptor-son. The issue framed on the question of waiver was decided by the trial Court against the appellants- defendants and, resultantly, the learned trial Judge vide judgment and decree dated 5th of September, 1970, decreed the suit on the payment of Rs.5,000. The first appeal of the appellants also failed vide judgment and decree dated 2nd of Septemer, 1971, of the learned District Judge, Gujranwala. It was observed in para. 9 of the judgment of the learned District Judge that the evidence of the appellants, as it stood, only conveyed that the pre-emptor was present when the negotiations of sale were conducted, and that nobody stated that the respondent-pre emptor had conducted the negotiations on his father's behalf or he had taken active part in the negotiations of sale. Learned First Appellate Court was of the view that simple presence at a place where negotiations were conducted would not create any estoppel for the pre-emptor to bring a suit for pre-emption. It was further observed that it has to be shown that the pre-emptor himself was active in the negotiations of sale and took part very vigorously in the entire settlement of the transaction. These findings of the learned First Appellate Court have been challenged in this Second Appeal.

2. Learned counsel for the appellants argued that Muhammad Bashir (D.W.2) one of the vendees, in his statement deposed that the plaintiff associated in the settlement of the bargain and that this assertion of one of the vendees remained unchallenged as Muhammad Bashir (D.W.2) was not cross-examined in this respect. Learned counsel relying on Ghulam Rasool and 4 others' v.

Muhammad Hanif 1980 CLC 1811 argued that a portion of the testimony of the witness which has not been subjected to cross-examination has to be taken as correct. Reliance is also placed on the observations of the learned Judges of the Supreme Court in Nasir Ahmad v. Arshad Ahmed PLD 1989 SC 903.

3. Learned counsel for the respondent-pre-emptor in reply argued that the respondent-pre- emptor had no knowledge of the sale and he having also stated that he did not take part in the bargain was rightly believed by both the learned Courts below and that the evidence produced by the appellants-defendants was not sufficient to discharge the onus of the issue. He, thus, supported the findings recorded by the learned Courts below.

4. I have considered the respective pleas of the learned counsel for the parties and have also gone through the record. It is correct that Muhammad Bashir's statement that the pre-emptor plaintiff participated in the bargain, remained unchallenged in the cross-examination. He was supported in this respect by Muhammad Shafi (D.W.1). As against this, Nisar Ahmad pre-emptor appeared as his own witness. No other evidence was produced by him. He in his statement though denied the knowledge of the sale or his participation in the bargain, yet in cross-examination he admitted that he lives alongwith his father. He also denied the suggestion that his father has settled the bargain along with him and that both of them had received the price. It cannot be ignored that the assertion of Muhammad Bashir made in his statement regarding participation of the pre-emptor plaintiff in the sale transaction remained unchallenged. A portion of the statement which remains unchallenged in cross-examination has to be accepted. Again, the pre-emptor plaintiff is the son of the vendor. Both of them live together in the same house. The learned First Appellate Court also observed that the evidence of the appellants convey that the pre-emptor was present when the negotiation of sale was conducted. The presence of a son would naturally post him with the knowledge of the transaction and in these circumstances if the pre-emptor was generally so keen to purchase the land or property in question, he would have come forward then to pay the price which was being offered to the vendor by the other person. In the similar circumstances, the finding of waiver was recorded in favour of the vendee and this finding was upheld by the learned Judges of the Supreme Court in the case of Nasir Ahmad v. Arshad Ahmad (supra). The relevant portion reads as under:- "It is universally accepted that pre-emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual 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 forward 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 obtain 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 enhanced 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 assume that there was collusion between the two. We feel that such suits are very often male 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."

'Following the above-quoted observations, I hold that the appellants were able to establish waiver.

The finding recorded by the learned two c Courts below on issue No.1, is therefore, reversed. The issue No.1 is decided in favour of the appellants-defendants.

5. The net result of the above discussion is that the suit is liable to be dismissed. I, therefore, accept the appeal, set aside the judgments and the decrees passed by the learned Courts below and dismiss the suit of the respondent with costs throughout.