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Civil Revision No. 1324‑D of 1985, decided on 4th June, 1986.

‑‑‑S. 115‑‑Punjab Pre‑emption Act (I of 1913), S. 15‑‑Evidence Act (I of 1872) , S. 115‑‑Revision‑‑Pre‑emption suit‑‑Waiver‑‑Estoppel‑ Allegation that land in dispute had been offered to plaintiff‑respondent for purchase but he declined same and that plaintiff‑respondent was himself present at time of striking of bargain not established by evidence‑‑Pleas of waiver of right of pre‑emption and that of estoppel held, could not be said to have been proved in circumstances of case‑ Clear and cogent evidence, held, was required to be led in support of such pleas‑‑Findings of Courts below adverse to petitioner on points of waiver and estoppel, held, were clearly unexceptionable.‑‑[Estoppel].

A I R 1926 Lah. 10 and a I R 1937 Lah. 504 ref.

‑‑‑S. 115‑‑Punjab Pre‑emption Act (I of 1913). S. 15‑‑Suit for Pre‑emption‑‑ Valuation‑‑Objection with regard to calculation of value of suit for purposes of court‑fee and jurisdiction raised in written statement without either specifying as to how was same incorrect or even mentioning correct valuation‑‑No evidence even led by vendee to prove correct valuation‑‑Objection, held, remained unsubstantiated and could not be given effect to.

Ch. Muhammad Hayat for Petitioner.

Allah Wasaya Malik for Respondent No.l.

Nemo for Respondent No.2.

Date of hearing: 4th June, 1986.

Sale of agricultural land measuring 20 Kanals being the 1/5th share of 100 Kanals comprised of Khata No.52/52, situated in Chak No.40/3‑R, Tehsil and District Okara, effected by Muhammad Ashraf respondent No.2 in favour of the petitioner Barkat Ali, by means of a registered sale‑deed dated 31‑8‑1981 for the alleged consideration of Rs.63,000 was sued out to be pre‑empted by Muhammad Sharif respondent No.l on the ground of his being a co‑sharer in the Khata upon payment of Rs.50,500 which he alleged to be the real price thereof. Vendee defendant denied his claim and contested the suit by pleading estoppel and also alleging that the suit was collusive and Benami for the benefit of another person. The suit was set down to be tried on a total of 8 issues settled to determine the respective pleas of the parties, ninth issue being that of relief. On the basis of evidence led by the parties, trial Court held that the objections with regard to estoppel, collusion and the suit being Benami had not been proved. Superior right of pre‑emption of the plaintiff was held proved from Exh.P.2, a copy of Jamabandi relating to the year 1979‑80. The ostensible sale price was found to have not been proved to be either fixed in good faith or actually paid. Trial Court found that a sum of Rs.50,500, minus the mortgage money of Rs.2,500 was paid before the Sub‑Registrar and a sum of Rs.4,000 only had been paid as earnest money before the sale and consequently decreed the plaintiff‑respondent's suit on payment of Rs.54,500.

2. Vendee‑defendant preferred an appeal thereagainst which was heard and dismissed by a learned Additional District Judge on 25‑5‑1985 by affirming the findings of the trial Court. He has now come up to this Court on revision.

3. Correctness of the observation of the learned Additional District Judge with regard to the plaintiff's superior right of pre‑emption having not been contested before him by the petitioner's counsel, was disputed with the submission that in fact he did not appear in his Court on the date of hearing of the appeal and the petitioner appeared there in person. Apart from furnishing an affidavit of Ch. Abdur Razzak, Advocate, his counsel in appeal below, to that effect, as Annerure 'A', the petitioner also produced as Annexure 'M', a certified copy of the interim order dated 25‑5‑1985 recorded in the appeal wherein the petitioner (appellant below) was mentioned to have appeared in person when learned Additional District Judge purported to hear the appeal and dismiss the same. By order dated 6‑7‑1985, learned Additional District Judge was required to explain the disparity between his judgment and the interim order. In his reply dated 30th July, 1985, he submitted that since he had already relinquished charge at Okara and was posted as District Judge at Chakwal, therefore, he was not in a position to furnish the desired explanation, without going through the record. However, on 19‑11‑1985 learned counsel for parties stated that in the circumstances, the said explanation was not in need of being waited for and the civil revision deserved to be set down for hearing. Record was consequently ordered to be summoned for today. It has been received and perused. In the Jamabandi Exh.P.2 plaintiff is recorded to be a co‑sharer in the Khata in suit and so has also been admitted by Barkat Ali petitioner in his statement as D.W.2, wherein he has further stated also that he himself is not a co‑sharer in that Khata, therefore, trial Court's finding under issue No.l to that effect being affirmed in the appeal below did not suffer from any defect of jurisdiction.

4. Learned counsel for petitioner next contended that the plaintiff respondent had waived his right of pre‑emption in so far as the land in dispute had been offered to him for purchase but he declined it. In addition thereto, plea of estoppel was also sought to be sustained on the averment that the plaintiff was himself present at the time of the striking of the bargain. On the point of offer to the plaintiff for purchase and his refusal, there is the solitary statement of the petitioner wherein he has not alleged even that the land was offered to be sold to the respondent‑plaintiff at the same price at which he had ultimately purchased it. Moreover, Sadiq Taili, who was alleged by him to have accompanied him to the plaintiff at that time, has not been called to the witness‑box. In this situation, plea of waiver of right of pre‑emption cannot be held to have been proved through the bald statement of the petitioner. It is well‑settled that clear and cogent evidence is required to be led in support of such a plea and reference in this behalf may be made to A I R 1926 Lah. 10 and A I R 1937 Lah. 504. Thus, findings of the two Courts below adverse to the petitioner on the points of waiver and estoppel are clearly unexceptionable.

5. The only other argument raised by the learned counsel is with regard to the valuation of the suit. The plaintiff had valued the suit for purposes both of Court‑fee and jurisdiction at Rs.21,390 which was stated to have been worked out as the 15 times net‑profits accrued' from the land in suit during the one year preceding the presentation of plaint. Therein the figure 7130 was shown to have been multiplied by 15 and divided by 5 for the reason that the sale in suit relates to the 1/5th share of the Khata. In the written statement objection was raised to the above calculation without either specifying as to how may it be incorrect or even mentioning the correct valuation. Even no evidence was led by the vendee to prove the correct valuation. Objection of the learned counsel remains unsubstantiated and cannot be given effect to. The same is, therefore, repelled.

6. No other point has been argued.

7. This civil revision has no force and is accordingly dismissed, leaving the parties to bear their own costs.

S. Q Petition dismissed

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