MATHURADAS CHUNNILAL AGARWAL Vs. ONKAR RAOJI MARATHE

JUDGEMENT

(1.) THIS is a second appeal by plaintiff Bajranglal Chunnilal whose suit for pre-emption was dismissed on the ground that he had waived his right to pre-empt.

(2.) THE plaintiff is the co-occupant of survey No. 35 situate at mouza Vitali, taluq Malkapur. On 17th January 1943, the defendant Onkar Baoji Marathe purchased 11 acres and 10 gunthas of land out of survey No. 35 for Rs. 1000 from one Kisanlal. Exhibit P-1 is the sale-deed regarding this transaction. On 20th January 1943, the defendant purchased 11 acres and 10 gunthas of land out of survey No. 35 for a consideration of Rs. 1000 from Mathuradas Chunnilal under Ex.P-2. On the same date, the defendant purchased 6 acres and 1 guntha of land out of the same field survey No. 35 from Motilal, Basantlal and Shyamlal for Rs. 800 under Ex.P-3. The plaintiff filed the present suit on 20th January 1944 claiming possession of fields in suit in the exercise of his right of pre-emption as a co-occupant of survey No. 35.

(3.) THE trial Court found that Ex.D-11 was executed after execution of the sale-deed (Ex.P-1) dated 17th January 1943 and before execution of the sale-deeds (EXS.P-2 and P-3). It held that the claim in respect of the sales (EXS.P-2 and p.3) was barred under Section 174 (3), Berar Land Revenue Code. The trial Court after examining the evidence came to the conclusion that the plaintiff bad given his oral consent to the sale-deed (EX.P-1). The plaintiff was, therefore, estopped from enforcing the right of pre-emption. The suit of the plaintiff was accordingly dismissed by the trial Court. The decree of the trial Court was confirmed in appeal.