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(a) Punjab Pre‑emption Act (I of 1913)‑

‑‑‑.. S. 15‑Evidence Act (I of 1872), Ss. 115 & 116 ‑Civil Procedure Code (V of 1908), S. 115‑Suit for pre‑emption‑‑Estoppel and waiver, principles of ‑Mere presence of plaintiff‑pre‑emptor at spot of Munadi of sale or at time of sale, held, could not, by itself, sustain plea of estoppel and waiver against him‑Findings to such effect recorded by District Judge in appeal, were therefore, unexcep tionable on record of suit wherein he had corrected conjectural judgment of Trial Court passed on basis of unwarranted assumptions to bring it in accord with law‑Trial Court's judgment found to be non‑coherent, perfunctory in nature, far from being satisfactory and product of perverted logic, revision petition was dismissed.

[pp. 93, 94]A et seq & B

Hakam Ali v. Fazla 1986 C L C 1183 and Muhammad Anwar and another v. Wali Muhammad P L D 1985 Lah. 489 ref.

Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others P L D 1982 S C 159 rel.

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

‑‑ Ss. 15 & 30‑Limitation‑‑‑Plaintiff filing suit on the last day of limitation‑No adverse inference can be drawn from such fact‑ Law having provided a period of one year to prospective pre‑emptor to make up his mind before suing plaintiff, held, would be within his right to wait until the last day of limitation and no inference adverse to him could be drawn from the fact that he had filed the suit towards the fag‑end of the limitation.‑[Limitation]. [p. 93]C

(c) Civil Procedure Code (V of 1908)‑

S. 20, O. II, R. 1 & O. VII, R. 1(e)‑Cause of action, what is Cause of action means the entire bundle of facts which a plaintiff has to prove in order to be eligible for the grant of some relief.

[p. 94] E

(d) Pre‑emption‑

‑Waiver‑‑What constitutes‑Waiver is an intentional abandonment of a known legal right and it can result from positive acts of commis sion or from omissions made contrary to a duty enjoined by law Waiver and estoppel has to be proved in pre‑emption cases by means of clear and cogent evidence. [p. 94]D

Sh. M. Sharif Zafar for Petitioners.

Suit of the respondents, for possession through pre‑emption of 55 Kanals and 1 Marla agricultural land situated in village Samand Singh, Tehsil and District Bahawalnagar, was contested by the vendee‑peti tioners on a number of pleas including those of waiver and consequent absence of cause of action, on the premises that they had themselves brought about the bargain with the vendees who bad purchased the land with their consent. These pleas led to the framing of issues Nos. 5 and 8 respectively. In the course of evidence, the vendees slightly shifted their plea into asserting that the sale was made after a Munadi effected in the village through one Noor Ahmad who, however, was not examined as a witness in support of it and it was also alleged generally that the plaintiff ‑respondents were present at the time of sale. The trial Judge decided issue No. 5, relating to waiver, against the plaintiffs with the observations as under;

"The witnesses produced by the plaintiffs have stated that they were not present at the time of transaction in dispute but the perusal of registered sale‑deed Exh. D. 3 shows that their name does not appear in the column of marginal witnesses and as such it is not proper to hold that the plaintiffs have no knowledge of the sale in dispute. Furthermore, the plaintiffs have stated in para. No. 8 of their plaint that cause of action arose from the date of registration i. e. 5‑1‑1982 whereas the suit in hand was instituted on 4‑1‑1983. In view of this aspect of the matter, it is quite clear that they kept silent for a period of about one year and when the suit was nearly to be time‑barred, they filed the present suit. This aspect of the matter clearly given an inference from their conduct that they were not willing and vigilent in enforcing their right of pre‑emption and as such they have abandoned the same for a period of about one year. Keeping in view of this aspect of the matter it is proper to hold that they have waived their right of pre‑emption and as such the issue is answered in the affirmative."

and thereupon concluded also that the plaintiffs do not have the cause of action for the suit and proceeded to even decide issue No. 8 against them to dismiss their suit on 5‑12‑1985.

2. An appeal there against filed by the plaintiffs has been accepted by the learned District Judge, Bahawalnagar by his judgment dated 6‑7‑1986 by reversing the trial Court's findings under both the said issues. He held that mere presence of the pre‑emptors at the time of bargain, without any overt act in the settlement of bargain attributed to them, does not constitute waiver of right of pre‑emption and decreed their claim.

3. ‑ The vendees have now come up to this Court on revision. After conceding that plea of the vendees with regard to settlement of bargain by the pre‑emptors has not been proved, learned counsel has argued that this was not a case in which the prospective pre‑emptors happened to be present at the spot as mere spectators and since the vendors had come from another place and had offered to sell their land by making Munadi in the village, therefore, the presence of the plaintiffs at the spot, coupled with' their failure to offer any bid, may be deemed to have at least created an impression upon the vendees that they were not interested in getting the land. All this, even though not properly proved, cannot be an enough basis for concluding waiver of right of pre‑emption and I have already considered this question at length in Hakpm Ali v. Fazla (1) and have come to the conclusion that there cannot arise any question of waiver in the case of sale made after Munadi. Even this is well settled that the proof of mere presence of a pre‑emptor at the time of sale, without anything more cannot, by itself, sustain the plea of estoppel and waiver. In Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others (2), wherein the Courts below had concluded that the mere presence of the pre‑emptor at the time of sale, even if accepted, could not be held to amount to waiver ; after referring to a number of reported cases, their Lordships of the Supreme Court approved this view at page 163 of the report with the observation that his mere presence at the time of sale could not be considered sufficient for inferring waiver and declined interference. In Muhammad Anwar and another v. Wali Muhammad (3), after repelling the very same contention as has prevailed with the trial Court in this case, I have myself held that mere presence of a pre‑emptor at the time of sale does not constitute waiver of his right of pre‑emption. Contention of the learned counsel with regard to estoppel or waiver against the plaintiffs is only untenable and is accord ingly repelled.

(1) 1986 C L C 1183 (2) P L D 1982 S C 159

(3) P L D 1985 Lab. 489

4. No other point has been argued by the learned counsel.

5. Findings recorded by the learned District Judge in the appeal below are unexceptionable on the record of the suit and therein he has corrected the conjectural judgment of the trial Court, passed on the basis of unwarranted assumptions, to bring it in accord with the law. Trial Court's judgment passed in this case by Mr. Abdul Karim Langah, who happened to be a Civil Judge First Class, is non‑coherent and being only perfunctory in nature, is far from being satisfactory. There is no doubt that his above‑reproduced observations are the product of perverted logic. It defies comprehension as to how, when the trial Judge had himself found that the pre‑emptors are not the marginal witnesses of the sale‑deed, may he have concluded, "it is not proper to hold that the plaintiffs have no knowledge of the sale in dispute" A rational conclusion therefrom should have been that the pre‑emptor were not present at the time of the sale and this fact could not possibly have. been used for disbelieving their assertion to that effect. Again, since the law provides a period of one year to the prospective pre‑emptor to make up his mind before suing, therefore, he has to be considered perfectly within his right to wait until the last day of limitation available to him for filing his suit and no inference adverse to him can be drawn from the fact that he has filed the suit towards the fag‑end of the limitation. Muchless can an inference of waiver follow from this mere fact because waiver is an intentional aban donment of a known legal right and it can result from positive acts of commission or from omissions made contrary to a duty enjoined by law. There is a volume of case‑law available on the point that waiver and estoppel in pre‑emption cases has to be proved by means of clear and cogent evidence. I have already referred to some of those cases in para. 7 of my above‑quoted judgment in the case of Hakam Ali. Trial Judge does not seem to have even comprehended the true connotation of the term cause of action', which has been described in judgments of high authority,) including our own Supreme Court, to mean that entire bundle of facts which a plaintiff has to prove in order to be eligible for the grant of some relief. This is in the wake of it that clause (e) of rule 1 of Order VII of the C. P. C. provides that plaint shall contain the facts constituting the cause of action and when it arose. In mentioning the date of sale (5‑1‑1982), in para. 8 of the plaint as having given rise to the cause of action, the plaintiffs had only faithfully complied with the said requirement of law. Even if they may have filed the suit on the very next day of the sale, even then the said entry would have been so made in the plaint. How may then such an entry have given rise to the 'clear inference' drawn by the trial Judge Learned District Judge has correctly spurned the view of the trial Judge with the reasoning that since the sale has been made and the plaintiffs have in fact brought the suit to pre‑empt it on the basis of a stated right, therefore, there cannot arise any question of absence of cause of action for them.

6. Result of the foregoing is that there does not emerge any case at, ail for exercise of revisional jurisdiction. Hence, dismissed in limine.

s. Q. Petition dismissed.

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