SADHU Vs. PIARI

JUDGEMENT

(1.) Ram has filed Regular Second Appeal Nos. 1541 of 1967 and 257 of 1968 against the judgments and the decrees of the lower appellate Court whereby two pre-emption suits filed by the appellant had been dismissed on the ground that the appellant had waived his right of pre-emption. The trial Court had granted the appellant a decree in one of these cases but in the other case the two Courts below had come to the concurrent findings of fact that the plaintiff-appellant has waived his right of pre-emption. In either case it is a finding of fact which is being challenged at the stage of second appeal under Section 100 of the Code of Civil Procedure.

(2.) The land which is the subject-matter of the dispute in both the cases had belonged to Tulsi Dass who had entered into an agreement Exhibit D-1 dated 5th October, 1964 to sell it to the appellant for a sum of Rs. 4,000/-. The appellant had paid a sum of Rs. 1,000/- to the vendor at the time of this agreement of sale. Five equal instalments of Rs. 600/- each were fixed for the balance of sale price of Rs. 3.000/- and were payable on the 1st day of the month of July from 1965 to 1969.

(3.) Within 2-3 months of this agreement of sale the owner felt the need for cash in a lump sum and served the notice Exhibit D.W. 1/1, dated 31st December, 1964 on the appellant by registered post. There is a Postman's report dated 6th January. 1965 on this notice that the addressee has deliberately (dida danista) refused to accept service. After a few similar reports the notice was returned undelivered to the sender on 19th January, 1965. In this notice the owner had called upon the appellant to arrange for the payment of the balance price within a fortnight and to get a sale deed registered. The question how far the owner was justified in trying to back out of the agreement is besides the point because the owner had actually prevailed upon the appellant to accept a refund of Rs. 1,000/- together with damages amounting to Rs. 700/-. The appellant had executed the receipt Exhibit D.W. 1/2, dated 29th June, 1965 in the vendor's favour and had recited in the document amongst other things that the agreement had been cancelled on receipt of the sum of Rs. 1700/- in cash. This amount had been accepted by the appellant more than a fortnight after the land had been sold by the owner separately in two parcels to two different persons who are the respondents in these appeals. These sales had been effected by registered deeds Exhibits D-2 and D-3 dated 10th June, 1965, which were for a sum of Rs. 3000/- in each case. These are the two sales which are sought to be separately pre-empted by the appellant in these two suits.