Bohru vs Khubi

Vinod K.Sharma, J.

1 This appeal by the appellantplaintiff is directed against the judgment and decree passed by the learned Additional District Judge, Faridkot, dismissing the suit for possession by way of preemption filed by the plaintiffappellant.

2 The plaintiffappellant filed suit for possession by way of preemption, on the pleadings that DW3Bhagwan Sehai was owner of agricultural land, as detailed in para 1 of the plaint. The plaintiffappellant claimed to be co sharer in the khewat in dispute along with the vendor as also his cousin. The defendants No. 1 and 2, the vendees were said to be the strangers to the land. The plaintiffappellant clamed that no notice as required under Section 19 of the Punjab Preemption Act was served upon the plaintiff.

3 The suit was contested by the defendantsvendees on the ground of locus standi and also on the plea that not only the plaintiff, but the entire village was in know of the sale but the plaintiff did not have enough money to purchase the land, therefore, he chose not to buy it. It was the case of defendantsrespondents, that the land in question was purchased for consideration of Rs. 10,000/ (Rupees ten thousand only) and no efforts were made to inflate the amount in question. The stamp, registration and other misc. expenses were also borne by the defendants.

4 On the pleadings of the parties, learned trial Court framed the following issues :

"1. Whether the plaintiff has a superior right to preempt the impugned sale ? OPP.

Whether the consideration amount was fixed in good faith and actually exchanged hands ? OPP.

If issue No. 2 is not affirmed, what was the approximate market price of the land in dispute at the time of the impugned sale ? OPD

Whether the vendees are entitled to stamp, registration and other miscellaneous expenses. If so, what is the amount so spent by them ? OPD."

Learned trial Court, on appreciation of evidence and on the admitted facts, decided Issue No. 1 in favour of the plaintiffappellant, being a cosharer in the land in dispute. The plaintiff appellant had a superior right of pre emption.

5 Issue No. 2 was decided in favour of the defendants, and it was held that the land was sold for sale consideration of Rs. 10,000/ (Rupees ten thousand only) which was actually paid at the time of sale.

Issue No. 3 was held to be redundant in view of the finding on Issue No. 2.

In view of the finding that sale deed was executed, the defendantsrespondents were held entitled to the expenses of stamp duty, registration charges and other miscellaneous expenses amounting to Rs. 1500/ (Rupees one thousand and five hundred only).

Issue No. 5 was also decided against the defendants and consequently, the suit was decreed.

The defendantsvendees preferred an appeal.

6 The appeal preferred by the vendeesdefendants, was accepted by the appellate Court, for the reason that in para 4 of the written statement, it was pleaded by the defendantsrespondents, that the plaintiff had the knowledge of sale and had actually witnessed the sale deed in question, before the Sub Registrar, at the time of its registration in favour of defendants vendees. The learned appellate court held that this conduct of the plaintiff to be sufficient to hold, that he had waived his right to preempt the sale on principle of estopple.

7 Learned appellate Court also held that even though no specific issue in this regard was framed, still the issue was discussed in judgment, therefore, there is no necessity to frame any additional issue, as the parties were allowed to contest and had led evidence in support thereof.

8 The learned appellate Court held that there was evidence, and pleadings on record, to show that vendor at the time of registration of sale deed had received a balance amount of Rs. 3000/ (Rupees three thousand only) through the plaintiff, thus it could not be said that the plaintiffappellant did not understand the implication of the transaction in question.

9 Learned appellate Court held that in case plaintiffappellant was opposed to sale to claim right to preempt the sale by the vendor, then there was no occasion for him to appear before the Sub Registrar and accept the balance sale consideration of Rs. 3000/(Rupees three thousand only) on behalf of the vendor. The plaintiffappellant was not held entitled to preempt the sale on account of waiver.

10 The learned appellate Court in support of this finding, placed reliance on the judgment of this Court in case of Deva Nand and others v. Smt. Kaushalya Devi and others, 1985 PLJ 11 wherein it was held as under :

"The sum and substance of the above ruling is that to constitute waiver on the part of the preemptor it has to be established that before effecting the sale, the property had been offered for sale to the preemptor by the vendor and he had refused to purchase it or by some word or action, the preemptor had waived his right, i.e. had undertaken not to exercise his right of preemption or had performed some act which is entirely in consistent with his intention to exercise it or if inconsequence of any act done by him, the vendee had been directly induced to enter upon the sale in the bona fide belief that the preemptive right would not be exercised."

The conduct of the plaintiffappellant was held to be a ground to disentitle him to preempt the sale. Consequently, learned appellate Court dismissed the suit, by accepting the appeal.

11 Mr. S.K. Chauhan, learned counsel appearing on behalf of the appellant contends, that this appeal raises the following substantial question of law for consideration by this Court:

"Whether mere acceptance of balance sale consideration on behalf of a cousin, who is blind and attesting the sale agreement can be ground to defeat the right of preemption?"

In support of the substantial question of law, learned counsel for the appellant, vehemently contended that in this case, the plaintiff appellant has proved his right of preemption, and also the fact, that no notice under Section 19 of the Punjab Preemption Act, 1913 (in short the `Act'') was issued, therefore, mere attestation of the sale deed and receipt of sale consideration could not amount to waiver of right of preemption, as no offer of sale, was proved to have been made to the plaintiffappellant.

12 On basis of the contention referred to above, it was prayed that substantial question of law, be answered in favour of the plaintiffappellant, and judgment and decree passed by the learned appellate Court be set aside and that of trial Court is restored.

13 Mr. Adarsh Jain, learned counsel appearing on behalf of the respondents defendants, on the other hand, supported the finding of the learned appellate Court, by contending that the plaintiffappellant had taken active part in sale in favour of the vendeesrespondents, therefore, by his act had waived his right to preempt the sale. The conduct of plaintiffappellant in the case of preemption suit assumes more importance as the right of preemption is a piratical right which can be defeated by any means.

14 On consideration of the matter, I find force in the contention raised by learned counsel for the respondents. The Hon''ble Supreme Court in the case of Jagad Bandhu Chatterjee v. Smt. Nilima Rani and others, 1969(3) S.C.C. 445, has been pleased to lay down as under :

"In India the general principle with regard to waiver of contractual obligation is to be found in Section 63 of the Indian Contract Act. Under that section it is open to a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already laid down in Waman Shriniwas Kini v. Ratilal Bhagwandas & Co., 1959 Supp 2 SCR 217, 226 that waiver is the abandonment of a right which normally everybody is at liberty to waive. "A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right." It is wellknown that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of the forfeiture of such a right. So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant''s right under Section 26F of the Bengal Tenancy Act must be founded on contract or agreement cannot be acceded to and must be rejected."

Again in case of Indira Bai v. Nand Kisore, 1990(2) R.R.R. 490 : 1990 (4) SCC 668, the Hon''ble Supreme Court was pleased to lay down as under :

"3. Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated. Present case is a glaring example of it. True no notice was given by the seller but the trial Court and appellate Court concurred that the preemptor not only came to know of the sale immediately but he assisted the purchaserappellant in raising construction which went on for five months. Having thus persuaded, rather misled, the purchaser by his own conduct that he acquiesced in his ownership he somersaulted to grab the property with constructions by staking his own claim and attempting to unsettle the legal effect of his own conduct by taking recourse to law to curb and control such unwarranted conduct the Courts have extended the broad and paramount considerations of equity, to transactions and assurances, express or implied to avoid injustice.

Legal approach of the High Court, thus that no estoppel could arise unless notice under Section 8 of the Rajasthan Preemption Act (in brevity the `Act'') was given by the seller and preemptor should have had occasion to pay or tender price ignores the fallacy that estoppel need not be specifically provided as it can always be used as a weapon of defence. In the Privy Council decision referred earlier, the Court was concerned with Oudh Laws Act (18 of 1876) which too had an identical provision for giving notice by seller. No notice was given but since preemptor knew that the property was for sale and he had even obtained details of lots he was precluded form basing his claim on preemption."

In view of the authoritative pronouncements of the Hon''ble Supreme Court referred to above, the act of the plaintiffappellant in attesting the sale deed, receiving part of sale consideration, on behalf of the vendor, was an act, which can lead to only one conclusion, that the plaintiffappellant had actively participated in the sale, and thereby waived his right to preempt the sale. The findings of the learned appellate Court therefore, are affirmed. The substantial question of law, raised is answered against the appellant. This regular second appeal is dismissed but with no orders to cost.