TEJA SINGH WARYAM SINGH Vs. BIR SINGH LAKHU

JUDGEMENT

(1.) THIS regular second appeal is by the defendant-vendee Teja Singh in a suit for possession by pre-emption which was in stituted by Bir Singh, now respondent. The sale, which was sought to be pre-empted was of 26 Kanals 4 Marias of agricultural land situated in village Sidhupur Khurd, Tehsil Rupar, and it was effected by Uttam Singh vide sale deed dated the 25th May, 1953 (Exhibit D-1), the price being Rs. 17,527/ -. Bir Singh's suit for pre-emption, which was in stituted on the 20th February, 1961, was decreed by the Subordin ate Judge First class, Rupar. The vendee appealed and the learned District Judge accepted the appeal only to the extent that Bir Singh was required to make the deposit of a further sum of Rs. 386/- being the expenses for the execution and registration of the sale deed. Both the Courts below were agreed that the plain tiff being the brother of the vendor had a superior right of pre-emption to the vendee and on this question there is no contest in this second appeal. The defendant-vendee has also raised the pleas that the plain tiff was a mere figurehead acting for the vendor himself and further that the plain tiff had waived his right to sue. On these pleas issues Nos. 4 and 5 respectively were settled and the trial Court as well as the lower appellate Court have found these issues in favour of the plain tiff.

(2.) WHEN this appeal came up for hearing before Shamsher Bahadur J. , the only contention advanced by Mr. Shamair Chand, the appellant's learned counsel, concerned the question of walver. The circumstances on the basis of which the plea of Waiver was pressed were as follows; 2 Kanals and 13 Marias, out of the land sold by Uttam Singh to Teja Singh, had been mortgaged with possession by the vendor with Bir Singh plain tiff, After the sale Teja Singh on the 9th June, 1960, paid Rs. 474/- to the plain tiff with the consequence that the mortgaged land that is, 2 Kanals and 13 Marlas, was redeemed and possession of it delivered by Bir Singh to the vendee. In these circumstances Mr. Shamair Chand contended that by his conduct the plain tiff recognised the vendee's right to redeem, the. property, which right accrued to him merely oh account of the sale transaction in his favour and thereby the plain tiff must be taken to have assented to the sale transaction. Mr. Shamair Chand supported his contention by referring to Bawa lehna Singh v. Jagan Nath, 138 Pun Re 1883 and Mehta Chandras v. Malik itbar khan, 154 Pun LR 1906, while the learned counsel for the plain tiff cited Fazaldad khan v. Sawan Singh, 37 Pun. Re 1908, Kanshi Ram v. Bhojaram, AIR 1924 Lah 159 and In der Ram v. Iqbal Mohd. AIR 1948 EP 5. It was in view of these conflicting authorities that the case has been referred to the Full Bench for decision.

(3.) SO far as the facts of the present case are concerned there is no dispute. The only circumstance supporting the plea of waiver is that the plain tiff accepted from the vendee the amount of the mortgage deed due to him giving up as a necessary consequence possession of a small area out of the total area of the land which had been sold by the mortgagor. None of the cases cited by Mr. Shamair Chand, on behalf of the appellant, went to the length of holding that on these facts the plain tiffs had waived his right of pre-emption. The cases which were not brought to the notice of the learned Single Judge may first be mentioned. These are-- (1) Fatteh chand v. Nihal Singh, 106 Pun Re 1860, (2) Kishan Lal v. Ishri, ILR 28 All 237 and (6) Abdulla v. Bishendas, 22 Pun Re 1881. In the first case it was held that the right of pre-emption is a right to take ever a sale bargain in its entirety, and if a pre-emptor suffers another person to purchase, and is content to accept a derivative title from him with respect to a portion only of the premises sold, being unwilling to buy the rest, he must be held to abide the consequence of losing even that portion, if another person, having a superior right to that of his vendor, claims to assert his right to take over the original bargain as a whole. ILR 28 All 237 was a case in which the pre-emptor had accepted a lease of the land claimed from the vendee and it was held that this amounted to such an acquiescence in the sale as would bar the plain tiffs right of suit. These are thus cases in which the plain tiff was non-suited because he had accepted a derivative title with respect to the property sought to be pre-empted and they are, therefore, not helpful for the decision of the point under consideration. In the present case. In the third case, the defendant-purchaser had mortgaged the property in suit to the plain tiff, claiming pre-emption, for the very purpose of paying the purchase-money to his vendor; this purpose was stated in the mort gage deed, and it was held that under these circumstances the plain tiff was prima facie estopped from demanding the pre-emption. This case is of no relevance for deciding the question of waiver which is before this Court in the present appeal.