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Regular Second Appeal No. 174 of 1979, decided on 22nd December, 1986.
---S. 4--Right of pre-emption--Plea of waiver--Question of fact not susceptible to interference in second appeal--Finding of First Appellate Court supported by evidence on record--Mere fact that another conclusion to the contrary was also possible on the basis of same evidence, held, could not entail interference with findings on a question of fact recorded by First Appellate Court whose Court is final on facts.
---S.4--Right of pre -emption--Waiver--Proof--Mere presence of a pre-emptor at time of bargain or sale, held, could not question plea of waiver.--[Waiver].
Hafiz Hassan Muhammad and 2 others v Abdul Hameed and 2 others P L D 1982 SC 159 rel.
Zafar Pasha Chaudhry for Appellants.
Suit for possession through pre-emption filed by the respondents regarding agricultural land measuring 8 Kanals 18 Marlas situated in Chak No.1, Tibbi Bhago, Tehsil and District Sheikhupura was contested by the vendee-appellants by denying their right and also raising the plea of estoppel whereabouts the only evidence is the statements of the parties, wherein the two vendees, stated that they h9d purchased the land in dispute from the plaintiffs' sister and that the bargain of sale was brought about by the Braderi and the plaintiff was present at the time but no one objected to their purchasing the land. He, however, did not either name as to which of the two plaintiffs may have been present or assert even that such plaintiff may have teen offered to be sold the land and declined by him. On the other side Phoola, one of the plaintiffs appeared as the solitary witness to admit that the bargain was struck at his house but denied his presence there. Learned trial Judge decided the issues, excepting that of waiver, in favour of the Plaintiffs but dismissed their suit on 26-10-1978 with Ole conclusion that it was not believable that the vendor Mst. Nooran, the sister of the plaintiffs, may have struck such a bargain at their house without their knowledge and active consent.
2. In appeal filed there against by the plaintiffs, learned District Judge, however, differed with the conclusion of the trial Court on the question of waiver and reversed its findings with the following observations: -
"Beyond the bare oral statements of the respondents, whose testimony necessarily suffers from partiality, there is no independent evidence to establish the active participation of the appellants in negotiating or settling the bargain of sale of the land in dispute. It is nowhere in the statements of the respondents that the land was ever offered to the appellants and they refused to purchase it."
In consequence, the appeal was accepted on 14-2-1979 to decree the suit of the plaintiffs. There against vendees have now come up to this Court in second appeal.
3. Record has been sent for and perused. There is no other oral evidence led in the suit and the conclusion of the learned district Judge has the support from record. The mere fact that another conclusion, to the contrary, may also be possible to be reached on the basis of the same evidence, cannot entail interference with the findings on a questions of fact recorded by the learned District Judge whose Court is final on facts. Moreover, it has been recently held by their Lordships of the Supreme Court in Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others P L D 1982 S C 159, that mere presence a pre-emptor at the time of bargain of sale cannot sustain the plea of waiver. View, on the point, taken by the learned Judge is clearly correct.
4. There is no case made out within the scope of section 100 of the C . P. C . Hence, dismissed in limine.
A.A. /N-15/L Appeal dismissed.
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