LATAJI Vs. KRISHNAJI

JUDGEMENT

(1.) THIS second appeal arises out of a suit for pre-emption. The plaintiff's case was decreed again3t the defendant in the lower appellate Court though the same was dismissed in the first Court. Hence this second appeal by the defendant. The finding of the lower appellate Court to the effect that the defendant was not a co-occupant at the date of his purchase must stand in the absence of any evidence to the contrary. So the plaintiff's suit could not be thrown out on that ground alone the next point was whether the circumstance that the contract of sale to defendant was accompanied by a covenant for re-sale to the vendor makes the sale a mortgage. The agreement, dated 7th July 1921, Ex. D-3. is absolute in its terms, so is the sale-deed. I, therefore, think that a mere agreement to reconvey the property imports a personal contract and affects or creates no interest in property, nor does the agreement or covenant run with the land: Avula Charamudi v. Marriboyina Raghavulu [1913] 39 Mad. 462. The question, however, still remains what is the effect of a reconveyance before the suit for preemption is filed. I think the case in Ganpatsa v. Joomabai [1906] 2 N.L.R. 150 and Raijai v. Irbhan [1009] 5 N.L.R. 136 affirm the proposition that the plaintiff's right of pre-emption being presumably a right of substitution, cannot be taken away by any transaction reconveying the property either to the vendor or to the stranger, whether the reconveyance takes place before suit or after suit or decree. I thing the provisions of Section 205, Berar Land Revenue Code do not lay down that the right of pre-emption will be lost on resale of the property to the vendor himself. A right of suit once acquired will not ordinarily be lost except by lapse of limitation or by abandonment express or implied, much less could the vendor and the vendee by a private treaty between themselves prejudice the preemptor's right by a transaction to which the pre-emptor is not a party.

(2.) NO attempt is made before me to contest the decree on the ground of the price for pre-emption.