MUHAMMAD HAYAT And Others vs DOST MUHAMMAD And Other
This petition for leave to appeal arose from a judgment of the Lahore High Court, which dismissed a second appeal concerning a pre-emption decree granted in favour of the respondents. The petitioners, who were the vendees, challenged the decree primarily on the issue of waiver, arguing that the respondents had waived their right of pre-emption. The petitioners contended that the vendor had advertised the sale in a newspaper, made direct offers to the respondents, and announced the sale by beat of drum, all of which the respondents were aware of. The Supreme Court rejected these contentions. The Court held that the High Court had already reached a finding of fact against the petitioners regarding the evidence of waiver, and the petitioners failed to produce the alleged newspaper advertisement. Furthermore, the Court established the principle that mere knowledge of an intending pre-emptor about a sale, which subsequently becomes the subject of a pre-emption suit, does not constitute a waiver of the right of pre-emption. Consequently, leave to appeal was refused.
- Does mere knowledge of an intending pre-emptor about a sale constitute a waiver of the right of pre-emption?
- Can a finding of fact by the High Court be challenged in a petition for leave to appeal when it is supported by evidence?
- Is the failure to produce evidence of an alleged newspaper advertisement fatal to a plea of waiver in a pre-emption case?
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 4-12-1984 of the Lahore High Court; whereby a second appeal arising out of a pre-emption decree passed against the petitioners vendees in favour of the respondents preemptors, was dismissed.
2. Learned counsel for the petitioner has urged only one point, which is based on Issue No.5-- "whether the plaintiffs waived their right of pre-emption".
3. Although this issue was pressed before the trial Court and it was decided against the petitioners it was not pressed before the First Appellate Court. However, the learned High Court in second appeal allowed the point to be urged but after careful examination of the evidence led by the parties gave a finding against the petitioners. Accordingly leave to appeal has been sought.
4. Learned counsel has contended that the vendor had before the sale of the suit-land to the petitioners vendees, posted an advertisement in the newspaper offering the land for sale to all including the then intending preemptors and that direct offer was also made to the respondents- plaintiffs which was witnessed by persons who appeared at the trial and deposed about it. Learned counsel also pointed out the evidence led to support the plea that the same purpose was sought to be achieved by beat of drum in the locality where the sale took place and that the respondent- plaintiff was aware of all the above offers and efforts.
5. After hearing the learned counsel at some length in support. Of this petition, we do not find any force in it. Firstly because there is a finding of fact by the High Court against the petitioners regarding all the three items of evidence mentioned above which are pressed in service in support of the plea of waiver. When asked even at this late stage in this Court to produce the advertisement in the newspaper if any, the learned counsel frankly stated that despite his best efforts none has been discovered. Accordingly the point sought to be agitated in support of this petition stands concluded. The findings of fact do not suffer from any infirmity. Secondly, learned counsel remained unable to show that mere knowledge of an intending pre-emptor about the sale, which is subsequently made the subject-matter of a pre-emptor suit, would constitute waiver.
6. In the above view of the matter there is not force in this petition. Leave to appeal is accordingly refused.