CHAMPA BHARTI Vs. JAGANNATH

JUDGEMENT

(1.) THESE three civil second appeals have been preferred by plaintiff Champa Bharti against the judgment and decree of the learned District Judge, Ajmer. Though the vendees in the three cases are different persons yet as the properties which are the subject matter of sale are situated in the same area and a common question relating to the custom of preemption is involved in all the three appeals, they are being disposed of together by this judgment.

(2.) IN second appeal No. 340 of 1958 the subject matter of sale is a plot of land measuring 12 Bighas and 12 Biswas comprising of Khasra Nos. 1363, 1364,1366 and 1372 in Khata No. 23. The sale deed is in favour of Jagannath and Harnarain Mahajans by Jetha son of Goma Jat for a consideration of Rs. 4000/- and is dated 13th June, 1943. IN civil second appeal No. 385 of 1958, the subject matter of sale is land No. 849/6/1 measuring 130ft. towards the road side, 99 x 12 ft. towards the plaintiff's side and 95ft. towards Periwals and is in favour of Kaluram and others Oswals of Beawar by Kanahiyalal for a consideration of Rs. 650/- and the sale deed is dated 13th March, 1948. IN civil second appeal No. 386 of 1958, the subject matter of sale is land measuring 20 yards x 26 yards No. 1030 known as Chatra and has been sold to Mangilal Rawat and Jetha by Dula, Nathu and Dalla for a consi-dertion of Rs. 1400/- and the sale deed is dated 31st January, 1949. The subject matter of sale in all the cases is situated in Moza Bicharli alias Nayanagar, Tehsil Beawar and the plaintiff as Khewatdar of this Moza has claimed right of pre-emption in respect of these lands on the ground that there is a long standing, immemorial custom and usage of pre-emption in the village community. IN all the cases it was alleged by the plaintiff that fictitious price had been entered in the sale deeds though actually the price paid was much less.

(3.) THE contention of the learned counsel for the appellant is that notice was issued by the Collector before the agreement of sale was made in favour of the vendees and it was not issued under sec 10 of the Regulation and as such it cannot operate as waiver against (he plaintiff. It may be pointed out that the notice issued by the Collector clearly mentions that the vendor has agreed to sell the land to the vendees for a consideration of Rs. 4000/- and cannot be assailed on the above noted ground. THE absence of a notice under sec. 10 of the Regulation also does not bar the plea of waiver if it can be established on other grounds. In the present case it has been found proved on evidence that the plaintiff had - (a) declined to purchase the land when it was offered to him by the vendors. (b) had refused to sign the notice issued by the Collector before he sanctioned the sale inviting objections to the sale in favour of vendees who were non-Khewat-dars. (c) having come to know of the sale kept quiet for a period of four months. (d) allowed the vendees to spend money in sinking a well and constructing a compound wall. In such circumstances the courts below were right in holding that he had waived the right of pre-emption. THEre are no grounds to interfere with this finding.