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Regular Second Appeal No. 378 of 1978, decided on 23rd October, 1983.

‑‑Ss. 4 & 15‑.Evidence Act (I of 1872), S. 115‑Waiver‑Pre emptor participated in bargain‑Held, estopped by his conduct from pre‑empting sale.‑[Waiver].

Baqri v. Salehuon P L D 1972 S C 133 rel.

‑‑0. XX, r. 5‑Punjab Pre‑emption Act (I of 1913), S. 15‑Judg ment‑Conclusion arrived at without adverting to material on file, held, superficial and not sustainable‑Case remanded for decision afresh after discussing material on record.‑[Judgment].

Muhammad Ilyas Khan for Appellants.

Khan Muhammad Virk and Ch. Fazal Elahi for Respondent.

Date of hearing : 23rd October, 1983.

A pre‑emption suit filed by Haji Muhammad Ali, respondent, against th'e appellants, was resisted by the latter, inter alia on the ground of estoppel. Their case was that the respondent participated in the bargain and was fully aware of the sale in their favour. This controversy is reflected by issue No. 1. To prove this issue, the appellants examined four witnesses, namely, Muhammad Rafi D. W. 1, Muhammad Shaft IJ. W. 2, Muhammad Ashraf D. W. 3 and Muhammad Sadiq D. W. 4, who supported them, but they were disbelieved by the learned trial Court and the issue answered in favour of the respondent. As the trial Court's finding on the issue regarding right of pre‑emption was also against them. the suit was decreed in favour of the respondent.

2. Before the first Appellate Court, the appellants assailed the trial Court's finding on issue No. 1 only. The learned Additional District Judge who was seized of the appeal, by means of a brief judgment, dated 22nd March, 1978, assailed through this R. S. A., upheld the trial Court's finding on the said issue and dismissed the appeal. The operative part of his judgment is reproduced below :‑

"All the D. Ws. examined by the appellants stated that the respon dent/plaintiff was present at the time of settlement of bargain and he affected the bargain. The mere presence of pre‑emptor at the time of settlement of bargain or his participation in the transaction under the law does not amount to waiver. There is no evidence to show that the respondent was offered to purchase the land and he refused to purchase the land. The finding of learned Civil Judge on issue No. 1 is correct and does not call for interference."

3. I have heard the learned counsel for the parties and examined the record. The only point urged on behalf of the appellants in favour of this appeal is that the learned Additional District Judge did not discuss their evidence. On the other hand, the learned counsel for the respon dent submitted that finding on the question of waiver is a finding of fact, and issue No. 1 having been answered by both the courts below against the appellants, such concurrent finding cannot be interfered with in second appeal.

4. There is some force in the submission of the learned counsel for the appellants. It was open to the learned Additional District Judge to have discarded the appellants' evidence after discussing the pros and cons thereof. However, if he believed their evidence to the effect that the respondent participated in the bargain then I am afraid, the latter would be estopped by his conduct from pre‑empting the sale. In this connection a reference to Baqri v. Salehoon (PLD1972SC133) will provide :‑

"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."

Since the learned Additional District Judge did not discuss the evidence on the record for determination of issue No. 1, the finding of fact recorded by him cannot be upheld. The conclusion reached by him is superficial and was arrived at without adverting to the material on the file. I am not inclined to rest the decision of this R.S.A. on such a finding of fact and give a verdict on issue No. 1 in favour of the respon dent.

5. For the foregoing reasons this R.S.A, is accepted, the judgment and decree of the learned Additional District Judge set aside and the case is remanded to the learned first Appellate Court to decide it afresh in accordance with law, after discussing issue No. 1 on the basis of the material on the record. The parties are left to bear their own costs.

M. A. K. Appeal dismissed.

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