MOHAMMAD ISMAIL Vs. ABDUL GANI

JUDGEMENT

(1.) THIS is a regular first appeal by Mohammad Ismail and other defendant-vendees from the judgment of the learned District Judge decreeing the plaintiff's suit for pre-emption against them. The suit for pre-emption was instituted on the ground that the house sold to the vendees was continuous to that of the plaintiff. THIS was admitted by the defendants Sub they resisted the salt on the ground that the plaintiff had waived his right of pre-emption and was therefore estopped from instituting the suit. They also pleaded in the alternative that they had spent Rs. 600 in keeping the property in dispute in a state of good repair and were therefore entitled to a decree for that amount, if the claim for pre-emption succeeded. The learned District Judge who tried the suit framed necessary issues on the plead put forward by the defendants and, as stated above, ultimately decreed the suit in plaintiff's favour and dig-allowed the defendants claim for cost of improvements.

(2.) IN this Court the learned counsel for the defendant-vendees has not seriously contested the finding of the learned District Judge on the question of waiver. The provisions of the statute so far as Marwar is concerned are clear and, according to these, until a clear notice is given through Court, the plaintiff cannot be held to have relinquished his right to pre-empt and the suit instituted by him is competent. The term waiver is not used in Section 5 of the Act which runs as below : " When any person proposes to sell any property in respect of which any person has a right of pre-emption, be shall give notice to the persona concerned of the price at which he is willing to sell such property. Such notice shall be given through the Court in which a suit for pre-emption may be INstituted. "