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(a) Civil Procedure Code (V of 1908)-

- S. 100--Punjab Pre-emption Act (I of 1913), S. 19-Second appeal Pre-emption suit-Notice of sale through munadi-Question whether munadi held or not when taken up alongwith a consideration that whether contents of munadi constitute a sufficient notice so as to attract a waiver, held, becomes a mixed question of law and fact Rule of concurrent finding of fact not applicable in circumstances.[Finding of fact.

(b) Punjab Pre-emption Act (I of 1913)-

-- S. 19-Pre-emption suit-Notice of sale through munadi-Not envisaged .by Punjab Pre-emption Act yet notification of proposed sale by any form other than one given in Punjab Pre-emption Act not excluded Mention of price at which seller willing to sell land, held, an essential ingredient of notice-Notice through munadi not mentioning price at which vendor willing to sell his land, held further, cannot as to its contents be regarded as constituting proper notice.

(c) Punjab Pre-emption Act (I of 1913)-

-- S . 19-Civil Procedure Code (V of 1908), S. 100-Second appealPre-emption suit-Notice of sale lacking mention of price at which vendor willing to sell his land, held, not a valid notice to attract a waiver-Finding of Courts below on question of waiver set aside and suit decreed in second appeal.

Ch. Amjad Khan for Appellants. .

Ch. Khalid Mahmood and Eitezaz Ahsan for Respondents.

Dates of hearing : 22nd December, 1982 and 20th February, 1983.

This is a Regular Second Appeal having been brought from a judgment dated 22-2-1969 of the learned Additional District Judge, Sialkot whereby he dismissed the appeal of the appellants from a judgment dated Ist July, 1966 of the learned Senior Civil Judge, Sialkot dismissing the suit. ,

2. Briefly the facts of the case are that the appellant alongwith Ilam Din instituted a suit on 1st October, 1964 to pre-empt the sale of 52 kanals 4 marlas of land through a registered deed dated 6th May, 1964 for Rs. 15,000, situated in village Fatta Toor, Tehsil Narowal, district Sialkot. The land had been sold by one Shukar Din to respondents Karam Dad and Muhammad Sharif. The appellant and 1lam Din claimed themselves as collaterals of Shukar Din.

The suit was resisted by the vendees/respondents. The trial Court on the pleadings of the parties in view of their variance, framed seven issues, appertaining to the preferential right of pre-emption ; the sale price ; market price ; valuation of the suit ; territorial jurisdiction of the Court ; waiver and relief. Issues Nos. 4 and 5 were not pressed, issues Nos. 2 and 3 were decided in favour of the respondents. On Issue No. 1 the learned trial Court held that since the appellant had joined Ilam Din who was a stranger in the village, therefore, the suit of the appellant was hit .by the principle, of sinker. As to Issue No. 6 waiver was taken as established through the evidence, so the suit was dismissed as a result of these two findings.

3. Aggrieved therefrom the appellant and Ilam Din both filed an appeal which came to be decided by the learned Additional District Judge, Sialkot who reversed the finding of the learned trial Court on Issue No. 1 by striking off the name of Ilam Din since a statement as to the withdrawal of the appeal in respect with Earn Din had been made. The learned Additional District Judge after holding that that was a procedural matter, so the case could be proceeded after striking off the name, of Ilam Din and since his name had been struck off, the suit was not hit by the principle of sinker, so Issue No. 1 as to the superiority of right was decided in favour of the appellant but as to Issue on waiver the learned appellate Judge agreed with the finding of the learned trial Court.

4. In this appeal the learned counsel for the appellants has contended that the munadi having been held as a notice to the appellant cannot be treated as a valid notice to the appellant on two grounds, firstly, the person who conducted munadi had not been produced as a witness and secondly the contents were too short of the requirement of a notice as to sale so as to attract a waiver. Section 19 of the Punjab Pre-emption Act, 1913 may not be in issue in this case but a recourse can be had to it in order to ascertain that what sort of particulars a notice effected by a munadi or' through some other means, is to contain and in elaboration of his contention in this behalf the learned counsel has submitted that a notice, at least, must contain the particulars of land which is proposed to be sold alongwith the price upon which a seller is willing to sell.

5. The learned counsel for respondent No. 2, in reply to the - contention of the learned counsel for the appellants has firstly submitted that Ilam bin had again been joined while filing this appeal, therefore, his joining after the judgment of the learned Additional District Judge is fatal to the appeal itself because it can be regarded as having been bit by the principle of sinker. His second submission is that section 19 of the Pre-emption Act as to notice is not exhaustive itself so as to defeat other forms of notice and a notice need not always conform to section 19 of the Pre-emption Act and waiver is not attracted only on the force of a notice. There are other forms of waiver or sets of facts which can operate as a waiver and since there is a concurrent finding as to the question of waiver and this being a finding of fact cannot be re-opened within the scope of section 100, C. P. C. According to the learned counsel both the Courts below have rightly concluded the matter on the question of waiver.

6. The learned counsel appearing on behalf of respondent No. l has also emphasised that there being a concurrent finding, of fact on .the question of waiver by the Courts below, the same cannot be gone into in a regular second appeal, further maintaining that the question of munadi is not open to be denied since the appellant had not cross-examined the witnesses who had appeared in support of the munadi.

7. Before the question in issue is. examined it will be pertinent to mention that no doubt the heirs of Earn Din were cited as co-appellants but an application (C. M. 5907/C-81) was made during the pendency of this appeal mentioning that due to an act of inadvertence the legal heirs of Earn Din had been joined as co-appellants. Those persons having stepped into the shoes of Ilam Din could not b;, impleaded as co-appellants since Ilam Din's name had been struck off by the learned Additional District Judge. The application so made was allowed and the appeal was confined only to Ghulam Muhammad as the appellant.

8. It is true that on a question whether munadi was held or not a finding returned is termed as a finding of fact but when it is taken up alongwith a consideration that whether the contents of a munadi constitute aA sufficient notice so as to attract a waiver the question as a whole becomes as a mixed question of law and fact, factual as to the holding of the munadi and question of law as to the contents constituting a notice, therefore, the rule of concurrent finding of fact is not applicable in this case.

As to the munadi the vendees/respondents relied upon the contents of the sale-deed Exh. D. 1 in which it is mentioned that the vendor had already got a munadi effected through the Lambardar and the Chawkidar of the village as to the sale of the land. Ghulam Hussain D. W. 2 also appeared as a witness to the munadi who stated that before the sale a munadi had been effected in the village that if anybody was interested in purchasing the land in question he could do so and after the munadi the land was purchased by the vendees/respondents. Karam Dad vendee/respondent while appearing as D. W. 3 stated that before the sale a munad was held in the village. They also got effected a munadi that they were going to purchase the land in question and if there happened to be any person entitled to purchase the same he could do so but none came forward.

9. It will not be out of place to mention that the Punjab Pre-emption Act, 1913 contemplates no form of notice except as mentioned in section 19 of the Act and a notice through a munadi has not been envisaged by the Act yet it can be maintained that a notification of a proposed sale by any other form is not excluded by the Pre-emption Act. But as to the contents of a notice section 19 does throw light upon that irrespective to the mode of service of notice as mentioned in the section itself, according to which the B mentioning of price at which the seller is willing to sell the land is an essential ingredient. Here in the munadi referred to there is no mentioning of the price at which the vendor was willing to sell his land, therefore, the munadi as to its contents cannot lie regarded as constituting a proper notice. This case is not being decided on the ground that the sale was not notified as contemplated by section 19 of the Pre-emption Act. It is being decided by applying the elements as to the contents of a notice as given in 1st part of section 19. A mere notice to sell the land without indicating the price is not sufficient, therefore, this case lacks a valid notice to attract a waiver. Accordingly the finding of both the Courts below on the questions of waive are set aside and the suit is decreed subject to the payment of Rs. 9,700, in C addition to Rs. 2,300, as Zare Rehn and Rs. 3,000, already deposited as Zare Panjam, on or before 20th March, 1983, failing which the suit will stand as dismissed with costs. Resultantly, this appeal is accepted but in th

circumstances of this case the parties are left to bear their own costs.

M, Y. H, Appeal accepted,

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