WARYAM SINGH Vs. CHANAN SINGH

JUDGEMENT

(1.) The present appeal arises out of a sale of 66 kanals 16 marls of land sold by Sunder Singh to Chanan Singh, Hakim Singh and others for a sum of Rs. 10,000/- by a sale-deed executed on 30th of September, 1955, but registered on 5th of December, 1955. Waryam Singh plaintiff-appellant brother of Suder Singh filed a suit for pre-emption of this land. Kehar Singh filed a suit for preemption of this land. Kehar Singh and others also filed a rival pre-emption suit presumably after Waryam Singh had filed the suit; the suit number of Waryam Singh being 749 & that of Kehar Singh and others being 889. These two suits came to be consolidated and were heard together. Waryam Singh plaintiff was granted a decree for possession and it was directed that if he failed to pay the sale-price, the rival pre-emptors would be entitled to possession on payment of the sale-price. The vendee did not contest the decision but the rival preemptors Kehar Singh and others filed an appeal before the learned District Judge, Ferozepur. Having come to the conclusion that Waryam Singh had waived his right to file the suit for pre-emption, the lower appellate Court allowed the appeal of Kehar Singh and others and granted them a decree for possession on payment of the sale-price.

(2.) Waryam Singh has come in appeal to this Court and the short question for determination is whether the appellant had waived his right to bring a suit for pre-emption. The plea of waiver is founded on the presence of Waryam Singh at the time when mutation took place for recording the sale transaction of the 5th of December, 1955. The mutation (Ex. D.9) was recorded on 25th of January, 1956. According to the finding of the lower appellate Court, Waryam Singh was present at the time of mutation and raised no objection to the sale effected by his brother Sunder Singh. Though nothing really turns on this circumstance, it is a matter of strange coincidence that Sunder Singh died on the same day when the sale-deed was executed, viz. 30th of September, 1955. The lower appellate Court has relied on the statement of Gurdial Singh (D.W. 2) that the transaction was arranged by Waryam Singh. He has also referred to the evidence of Ghumanda Singh (D.W. 11) who stated that Waryam Singh has present at the time of mutation and asserted that he would file a suit for preemption in respect of the sale. Do these circumstances collectively or by themselves constitute waiver on the part of Waryam Singh? The basic essentials of waiver have been stated by George Spencer Bower in "The Law relating to Estoppel by Representation" (1923 Edition) at page 214:-

(3.) The principle of waiver is also expressed in the form that one cannot approbate and reprobate at the same time. The conduct of Waryam Singh in the present case cannot amount to any representation to the vendee that he had in any way precluded himself to bring a suit for pre-emption in future. It is well to observe that the vendee never Waryam Singh in his suit. If any person could defeat Waryam Singh on the ground of waiver it was the vendee and no one else. The plea of waiver could only be raised by a party who has accepted the representation of another and has acted to his detriment in relying upon it. In my view such a plea is not available to the rival pre-emptor and more so in this case when Waryam Singh had filed the earlier suit for preemption. It was held by a Division Bench authority of the Lahore High Court (Addison and Din Mohammad JJ.) in Kidar Nath v. Bagh Singh reported in AIR 1937 Lah 504, that