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R.O.R. No.64 of 1985, decided on 19th May, 1986.

---Para.25--Right of pre-emption--Waiver of--Refusal on part of pre-emptor to meet offer of sale on ground of higher sale price, held, would not constitute waiver and pre-emption suit could not have been struck down on ground of waiver--Waiver could be established only if there was categorical refusal on behalf of pre-emptor to purchase suit land.

Ch. Ali Muhammad for Petitioner.

Ch. Muhammad Anwar Bhindar for Respondent.

Date of hearing: 19th May, 1986.

The pre-emption suit brought by the petitioner Muhammad Yousaf for possession under, M . L. R . 115 on ground of tenancy was dismissed by the Assistant Commissioner/ Collector, Sadar Sub-Division, Gujranwala with findings that the petitioner/ pre-emptor failed to establish his tenancy over the suit land and also had waived his right of pre-emption. The judgment /decree of the Assistant Collector was upheld in appeal and the petitioner is now in revision against the judgment, of the learned Additional Commissioner (Revenue) Gujranwala, dated 26-11-1984.

2. I have heard the learned counsel for the parties. It is contended by the learned counsel for the petitioner that the fact that the petitioner/pre-emptor was offered the sale of suit land at Rs.23,000, does not constitute waiver or estoppel. Further, even if it were conceded that the petitioner had participated in transaction; this fact did not take away his right of pre-emption. This argument is resisted by the learned counsel for the respondents who has maintained that once an offer of sale has been made or the participation of a pre-emptor in the transaction established, the right of pre-emption is lost. On consideration of the facts of the case, I am, however, of the view that the refusal of a pre-emptor to meet the offer of sale on ground of high price does not constitute waiver. If it were held that the offer or sale at any price must be accepted by a pre-emptor failing which he would lose right of pre-emption, then it would become very easy to defeat such right by putting the offer at an unacceptable price. In my considered view waiver can be held established only if there is categorical refusal of the pre-emptor to purchase the suit land. In view of this discussion. I would hold that in this case the pre-emption suit could not have been struck down on ground of waiver.

3. On the second issue as to whether the pre-emptor held the tenancy of the suit land from the date of sale upto the date of decree, the position is that the entries of register Girdawari as they originally existed did not support the pre-emption claim of the petitioner. However, the learned District Collector has recently allowed the entries to be corrected in favour of the petitioner. This decision, however, is now under appeal. Such being the case, I am of the view that the case should go back in remand to the trial Court for a considered finding on, this issue. In this regard the trial Court can disregard the entries of register Girdawari and allow the parties to the tender supplementary evidence on this issue.

H.B.T Case remanded.

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