- (1.) THIS second appeal has-arisen out of the pre-emption case. The suit was filed by the plaintiffs-respondents (hereinafter referred to as the pre-emptors) for possession of the land, in dispute, by way of pre-emption, sold by Jarnail Singh to the defendants-appellants (hereinafter referred to as the vendees ). Jarnail singh, the vender, sold 10 Kanals 13 Marias of land. i. e. l/9th share of 96 kanals 3 Marlas of land comprised in Khevvat Nos. 105 and 106, fully described in para 1 of the plaint, for Rs. 6,000. vide sale-deed (Exhibit D-1j dated 20th february, 1968. The vendor was a co-sharer with the pre-emptors and thus the pre-emptors filed the suit on the basis of a superior right against the vendees who are absolute strangers. The claim of the pre-emptors was resisted by the vendees and the parlies contested on the following issues:- 1. Whether the plaintiffs have a superior right of pre-emption? 2. Whether the sale price was actually paid and/or fixed in good faith? 3. If issue No. 2 is not proved, what was the market value of the property in suit at the time of sale? 4. Whether the suit is bad for partial pre-emption? 5. Whether the plaintiffs are estopped by their conduct from bringing the suit? 6. Whether the other co-sharers of the land are necessary parties to the suit? 7 Whether the relief sought in the plaint has not been correctly assessed for purposes of court-fee and jurisdiction? 8. Whether the defendants-vendees incurred the deed expenses? If so, how much? 9. Whether the vendees-defendants made any improvement in the land in suit? If so. when and of what value? 10. Relief.
(2.) THE trial Court decided issue No. I in favour of the pre-ernptors holding that they had a superior right of pre-emption being co-sharers of the vendor; issues nos. 2 and 3 in favour of the vendees; issue No. 4 against the vendees; issue no. 5 against the pre-emptors holding that they are estrpppd by their conduct from bringing the suit; issues Nos. 6 and 7 against the vendees; and issues nos, 8 and 9 in favour of the vendees holding that they were entitled to Rs. 672. 50 as deed expenses and Rs. 400 for improvement in the land. On account of finding on issue No. 5, the pre-emptors' suit was dismissed by the trial Court. Dissatisfied by the judgment and decree of the trial Court, the pre-emptors filed an appeal before the Additional District Judge, Kernal, who had reversed the finding of the trial Court on issues Nos. 5 and 9, allowed the appeal and decreed the pre-emptors' suit on payment of Rs. 6,000 as sale price and Rs. 672. 50 as deed expenses, i. e. Rs. 9672. 50 in all. Hence this second appeal by the vendees.
(3.) THE only issue which now survives for -determination in this second appeal is issue No, 5 as the finding of the lower Courts on other issues is not assailed by the learned counsel for the vendees-appellants. He contended that the finding of the lower appellate Court on issue No. 5 is not sustainable in law and pointed out that D. Ws. 3, 4 and 6 have categorically stated that the pre-emptors were present at the time of negotiations and that an offer to purchase the land, in dispute, was made to them by the vendees, but they declined. In support of his contention, the learned counsel has placed reliance on Bhagat Ram v. Raghbar dial, AIR 1925 Lah 57; Ram Sahai v. Muhammad Tufail, AIR 1929 Lah 265; sardar Mohammad v. Khuda Bakhsh, AIR 1935 Lah 884 and Kanshi Ram sharma v. Lahori Ram, AIR 1938 Lah 273, All these cases are distinguishable from the facts of the present case, in Bhagat Ram's case (supra) the father of the pre-emptor had taken an active part in the negotiations, and the pre-emptor himself assisted in collecting the money he was not merely a silent spectator of the actual registration but took an active part there also. Their lordships of the Division Bench held as under:- ". . . . . . although the mere presence of pre-emptor at the time of registration is not sufficient to prove acquiescence, yet all these facts taken together point conclusively to such acquiescence throughout as must have influenced the vendee in concluding the transaction. " in Ram Sahai's case (supra) also, the vendor had made the offer to the pre-/ emptor to purchase the property which the qre-ernptcr declined on the ground that the house, in dispute, was situated in a Muhammadan Muhalla. Their lordships declined to interfere with the following observation:-"under the customary law of the Punjab, the right of pre-emption can be exercised or waived by a pre-emptor1 when property is offered to him for sale before a definite contract of sale with any other person has come into existence. " In Sardar Mohammad's case (supra) the pre-emptor was a next-door neighbour and he evinced no interest in the purchase of the house, when it was put to auction, though it was open for him to bid in that auction. In that situation it was held by their Lordships that the pre-emptor had waived his right to preemption and cannot challenge the sale on the basis of a superior right. In kanshi Ram Sharma's case (supra), an offer was made by the vendor before the actual sale which was declined by the pre-emptor. It was held by their lordships as under: "the right of pre-emption can be waived by a pre-emptor when property is offered to him for sale before a definite contract of sale with any other person has come into existence and such person has refused to purchase the property or intimated his intention of not purchasing the property. " But in the present case, no cogent evidence is present on the file to record the finding of waiver. No question was put to P. W. 2, Birkha Ram pre-emptor, when he came in the witness-box, as to whether they (the pre-emptors) were present at the time of sale or whether they actively participated in it D. W. 1 Pritam singh is the witness to the agreement of sale and D. W. 2 Rarn Sarup an attesting witness of- the sale-deed and they were present at the time of negotiations of sale but neither of them says that the pre-emptors were present at the time of the sale and were offered to purchase the land. It is not the case of the vendees even that the pre-emptors were present when the sale-deed was actually executed. There is no evidence on the record to show that the vendor made any offer to the pre-emptors to purchase the land, and strangely enough the vendor has not been produced.;