ZILA RAM Vs. JHANDU GANGA RAM

JUDGEMENT

(1.) FACTS giving rise to this second appeal may briefly be stated as under: Bahadur chand and others owned one half share and Puran Chand owned 1/8th share in some area of land. Admittedly in December, 1960. Bahadur Chand and others agreed to sell their one-half share at the rate of Rs. 1,250/- per kila to Jhandu, who was tenant in cultivation of the entire land and earnest money of Rs. 100/was paid by Jhandu. This bargain was not completed. There is a conflict between the parties as to what actually happened and I will discuss this a little later. It, is however, admitted that a notice was sent on 23rd of December, 1960, to the other party to have the sale-deed executed by 31st of January, 1961. As already stated, this bargain was not completed, and on 20th of February, 1961, Bahadur Chand etc. , sold their one-half share and Puran Chand joined with them in the sale of his one-eighth share. The property was sold to Zila Ram and others vendees-appellants by means of two sale-deeds at the rate of Rs. 1,750/- per acre for a total consideration of Rs. 1,900/- Thereafter a sum of Rs. 80/- was sent to Jhandu and he received this as the refund of the earnest money without any protest Jhandu brought a suit for possession by pre-emption, on 20th of February, 1962.

(2.) IT is not now in dispute that Jhandu is a tenant of the land. The main dispute between the parties was whether the plaintiff had waived his right of pre-emption. The trial Court found that the right had been waived and, therefore, dismissed the suit qua one-half share of Bahadur Chand and others. As regards one-eighth share of Puran Chand it was round that there was no waiver and, consequently the suit was decreed and this one-eighth share is no longer in dispute Jhandu alone went up in appeal and his appeal was accepted and it was held that Jhandu was entitled to a notice to take up the entire bargain of 5/8th share in the land and, therefore, the previous offer of sale by Bahadur Chand etc. of one-half share did not amount to a waiver. Consequently, the appeal was accepted and the suit was decreed in its entirety. The vendees have come up in appeal.

(3.) IT is now well settled that apart from the procedure laid down in Sections 19 and 20 of the Pre-emption Act, the plaintiff-pre-emptor can waive his right or, by his conduct, may be estopped from seeking to enforce his right of pre-emption. The present is certainly not a case of estoppel. The sole question for determination is whether in the circumstances of this case, Jhandu can be said to have waived his right of pre-emption qua one-half share of Bahadur Chand etc.