MUHAMMAD DIN through Legal Heirs vs NAZIR MUHAMMAD through Legal

' SYED DEEDAR HUSSAIN SHAH, J.--- This appeal is directed against the judgment of the Lahore High Court, Lahore, dated 10-4-2001, passed in Civil Revision No,1331 of 1988.

2. Briefly stated the facts of the case are that the appellants purchased the land measuring 264 Kanals 9 Marlas vide registered sale-deed, dated 12-2-1974 for a consideration of Rs,67000. Nazir Ahmed, predecessor-in-interest of the respondents, filed a pre-emption suit for possession of the suit-land. Appellants contested the suit. The learned trial Court after framing necessary issues, perusing evidence of the parties and hearing the learned counsel decreed the suit subject to deposit of Rs,80,540 vide judgment, dated 13-1-1986. This amount was fixed as Rs,67,000 as price, Rs,10,200 as cost of improvement and Rs,3,340 as registration expenses. Against the aforesaid judgment and decree, appellants filed appeal, which was allowed by the Additional District Judge, Kasur on 2-4-1988 observing that the respondents are estopped by their words and conduct from filing the suit. Feeling aggrieved, the respondents filed a revision petition, which was allowed by the learned High Court vide impugned judgment setting aside the judgment and decree of the learned Additional District Judge, dated 24-1988. Hence, this petition.

3. Kb. Muhammad Farooq, learned Advocate Supreme Court for the appellants, inter alia, contends that the learned High Court did not consider the case in its proper perspective, particularly the point of Waiver, which was duly accepted by the First Appellate Court; that the impugned judgment is the result of misreading and non-reading of the Material, therefore, appeal may be allowed.

4 Agha Tariq Mehmood, learned Advocate Supreme Court for the respondent vehemently opposed the contention of learned counsel for the appellants and submitted that the Impugned judgment is in consonance With law laid down by the this Court.

1. We have considered the 'contention of learned counsel for the parties and carefully examined the record, The learned Single Judge of the High COUR hag thoroughly examined the Material so produced as well as the evidence adduced by the parties, which has been elaborately discussed in the impugned judgment. Se fat as the point of waiver is concerned, the learned Judge has also discussed this issue in detail. The contention of the learned counsel felt the appellant that point of waiverwas not considered by the learned High Court, is not tenable from the record. The impugned judgment is well-reasoned and entirely based on the proper appreciation of facts of the case and the law laid down by this Court. It would be advantageous to refer here relevant paragraph of the impugned judgment, which reads as under:-- "(4) On the basis of the said evidence the learned trial Court has found that the onus of issue No,1 regarding estoppel has not been discharged while the learned Addl. District Judge has held otherwise. 1 have referred to the evidence in detail. By now it is well settled that in order to support the plea of estoppel or waiver very cogent evidence is to be led reflecting the person's conduct clearly indicative of abandonment of his rights. In the case of Jam Pari v. Muhammad Abdullah 1992 SCM R 786 the learned trial Court as well as the First Appellate Court recorded a finding of fact that the plaintiff is estopped from filing a suit and has waived his right. The said concurrent findings were interfered with and set aside by this Court. The Supreme Court of Pakistan reiterated the rule laid down in the case of Baqri and others v. Salehon and others PLD 1972 SC 133 and distinguishing the observations made in the case of Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403, it was observed:-- "We may say with respect that despite the generality of the expression, not the whole law, on the subject of waiver was intended to be enunciated thereby. As stated earlier waiver being a question of fact has got to be decided on proof of such fact by the evidence in each case. Relinquishment of right is not to be inferred readily and there should be positive evidence to induce the Court to hold that the respondent intentionally wanted to forego his right".

' The Honourable Supreme Court thereafter proceeded to quote with approval the following observations of a D.B. Of this Court in the case of Kidar Nath and others v. Bhag Singh and others AIR 1937 Lah. 504:-- "To deprive a person of any legal right that he possesses, there must be clear and cogent evidence on the record justifying that Court and the mere oral statements of a few witnesses deposing to certain circumstances from which it may be possible to infer that the prospective pre-emptor had knowledge of the sale, would not be enough to prove that he had positively relinquished the enforcement of his right".

' Having considered the evidence on record, I find that the same does not meet the criteria laid down in the said case of Jam Pan and the statements of a few witnesses duly rebutted by the petitioner cannot be made the basis for holding that he had relinquished his right to file the suit."

6. For the facts, circumstances and reasons stated hereinabove, we are of the firm view that this appeal is without merit and substance, which is hereby dismissed with no order as to costs.