MOOL CHAND Vs. MANI RAM

JUDGEMENT

(1.) This is plaintiff-pre-emptors' second appeal whose suit has been dismissed by both the Courts below.

(2.) Land measuring 64 Kanals was sold by its owner Labh Chand for Rs. 16,000/- vide registered sale-deed dated September 30, 1969, Exhibit D/7 in favour of Mani Ram, defendant. The plaintiff-appellants Mool Chand and Dwarka Dass claimed the right of pre-emption being the tenants on the suit land cultivating the same as gair maurusi tenants on 1/3rd batai under the vendor. The suit was contested on the plea that the plaintiffs were not the tenants on the suit land as alleged and secondly, the plaintiffs had waived their right of pre-emption. It was alleged that the plaintiffs had got executed an agreement from Labh Chand vendor on September 27, 1967 for the sale of land measuring 81 Kanals 1 Marla in their favour, but as they did not want to purchase the remaining land from the defendant, that is, the suit land, they got executed another agreement Exhibit D/6 in favour of the vendees on the same date. The said agreement was executed in the presence of the plaintiffs and Mehagna Ram, their brother and one of the plaintiffs-Dwarka Dass had also signed that agreement. On the pleadings of the parties, the trial Court framed the following issues :

(3.) Learned counsel for the appellants contended that from the evidence on the record, it has not been legally proved that the plaintiffs have waived their right of pre-emption. According to the learned counsel, the mere fact that the agreement Exhibit D/6 bears the signatures of one of the plaintiffs-Dwarka Dass, does not amount to waiver because the attestation of a deed does not, by itself, estop the person attesting from denying that he knew all its contents or that he consented to the transaction. In any case, according to the learned counsel, the very fact that in the said agreement Exhibit D/6, the recital was that Mehanga Ram and one Lakhmi Chand are the tenants on the suit land, is sufficient to prove that the plaintiff Dwarka Das never knew about the contents of the agreement, because it has been found as a fact by the trial Court that the plaintiffs were the tenants on the suit land at the time of sale and which finding has not been challenged by the vendee. Thus there being no legal evidence of waiver, the finding of the Courts below is vitiated and could be interfered with in the second appeal. In support of his contention that the mere attestation does not necessarily operate as estoppel, he relied on Abdul Aziz and others V. Abdulla and others, 1925 AIR(Lah) 413 and Pandurang Krishnaji V. Markandeya Tularam and others, 1922 AIR(PC) 20. Reference was also made to Kidar Nath and others V. Bagh Singh and others, 1937 AIR(Lah) 504, to contend that to deprive a person of any legal right that he possesses, there must be clear and cogent evidence on record justifying that course. On the other hand, learned counsel for the vendee-defendant contended that whether the plaintiffs have waived their right of pre-emption or not is a question of fact and, therefore, could no be interfered with in second appeal. In support of his contention he referred to Fateh Mohammed V. Ganga Singh, 1929 AIR(Lah) 265, and Zila Ram and others V. Jhandu, 1966 CurLJ 894.