Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Regular Second Appeal No.642 of 1 77, decided on 14th April, 1984.
---S.19--Civil Procedure Code (V of 1908), S.100--Right of Pre emption--Waiver--Notice under S.19 of Act, 1913 not served upon pre-emptor at time of sale--Oral evidence produced to show that pre-emptor waived right of pre-emption---Such evidence not conclusively establishing that pre-emptor was offered suit land for sale at specific price--Concurrent findings of Courts below that pre-emptor did not waive his right of pre-emption upheld in circumstances.--[Waiver].
Muhammad Asadullah Saddiqui for Appellants.
Malik Muhammad Azeem Rasool for Respondent.
This second appeal under section 100 C.P.C. calls in question, the validity of judgment and decree dated 28-7-77 of the learned Addl. District Judge, Gujranwala, whereby he dismissed, appeal preferred by the appellants against the judgment and decree dated 15-1-1976 of the learned Civil Judge, Gujranwala, in favour of the respondent.
Mst. Khudeja, instituted a suit for possession of the suit land in exercise of her superior right of pre-emption being sister of the vendors and a co-sharer in the khata. The suit was resisted by the appellants and one of the objections which is relevant for the disposal of this appeal, raised by them was that she was estopped to file the suit on account of her conduct. The learned trial Court recorded evidence led by the parties and decreed the suit as aforementioned. The appeal preferred against the aforesaid judgment and decree was dismissed by the learned Addl. District Judge, Gujranwala. Hence this second appeal.
3. The only contention reiterated by learned counsel for the appellants on the basis whereof this appeal had been admitted to regular hearing, was that the plaintiff at the time of sale of the suit land was present and participated in the bargain. The land was first offered for sale to her but she declined to purchase the same and thus waived her right of pre-emption. Learned counsel referred to the statements of Sarwar D. W. 3, Muhammad Aslam D. W. 4 and Abdil D. W. 5 and categorically asserted that plaintiff was present at the time bargain was struck between the parties, she did not purchase the land in dispute' despite offer, to that effect, was made to her. It was also contended that the plaintiff herself did not appear in the witness box to contradict the assertion made by the appellants that she had waived her right of pre-emption. He, however conceded that no notice under section 19 of the Punjab Pre-emption Act, 1913 was served upon the plaintiff at the time of the sale of the suit land.
4. Learned counsel for the respondent on the contrary contended that in the absence of notice under section 19 of the Punjab Pre-emption Act, 1913, the mere presence of the plaintiff at the time of sale was not sufficient to prove that she had waived her right of pre-emption. It was also argued that the appellants led oral evidence only to show that she was asked to purchase the suit land, but brought no evi9.ience on the record to prove that she was offered to purchase the land at specific price in the absence whereof it could not be pleaded that she had waived her right of pre-emption. He relied on Mustaqim v. Sher Bahadur (P L D 1962 (W.P.) Peshawar 14) and Ghulam Muhammad etc. v. Karam Dad etc. (P L D 1983 Lahore 295) in support of his submissions.
5. I have considered the contentions raised by the learned counsel for the parties and have perused the record with their assistance. Admittedly no notice under section 19 of the Punjab Pre-emption Act, 1913 was served upon the plaintiff at the time of sale. The oral evidence led by the appellants to prove that she had waived her right of pre-emption does not conclusively establish that she was offered the suit land for sale at specific price. It was necessary 'for the plaintiff to prove, that offer was made to her to purchase the suit land at least at a tentative price in the absence whereof it was not possible to hold that she had waived her right of pre-emption. The learned lower Courts rightly appreciated the evidence on record and concurrently held that the plaintiff did not waive her right of pre-emption. As observed above no notice under section 19 of the Punjab Pre-emption Act, 1913 was served upon the plaintiff. It was, therefore, necessary for the appellants to have produced other evidence of such a reliability which could have proved the issue, and satisfied the requirement of the provision of section 10 of We Punjab Pre-emption Act, 1913.
6. There is no merit in this appeal and is accordingly dismissed with costs.
M.Y.H./ 3570/L Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer