IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3096 of 1985 Date of decision : 28.7.2010 Bohru … Appellant Versus Khubi and others …Respondents Coram: Hon’ble Mr.Justice Vinod K. Sharma Present: Mr.S.K.Chauhan, Advocate for the appellant. Mr.Adarsh Jain, Advocate for respondent No.1 and 2. Vinod K. Sharma, J. This appeal by the appellant-plaintiff is directed against the judgment and decree passed by the learned Additional District Judge, Faridkot, dismissing the suit for possession by way of pre-emption filed by the plaintiff-appellant. The plaintiff-appellant filed suit for possession by way of pre- emption, on the pleadings that DW-3-Bhagwan Sehai was owner of agricultural land, as detailed in para 1 of the plaint. The plaintiff-appellant 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 plaintiff-appellant clamed that no notice as required under Section 19 of the Punjab Pre-emption Act was served upon the plaintiff. The suit was contested by the defendants-vendees 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 defendants-respondents, that the land in question was purchased for RSA No.3096 of 1985 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. On the pleadings of the parties, learned trial Court framed the following issues:- “1. Whether the plaintiff has a superior right to pre-empt the impugned sale? OPP. 2. Whether the consideration amount was fixed in good faith and actually exchanged hands? OPP. 3. 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 4. 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 plaintiff-appellant, being a co-sharer in the land in dispute. The plaintiff- appellant had a superior right of pre-emption. 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 defendants-respondents 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 defendants-vendees preferred an appeal. 2 RSA No.3096 of 1985 The appeal preferred by the vendees-defendants, was accepted by the appellate Court, for the reason that in para 4 of the written statement, it was pleaded by the defendants-respondents, 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 pre-empt the sale on principle of estopple. 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. 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 plaintiff- appellant did not understand the implication of the transaction in question. Learned appellate Court held that in case plaintiff-appellant was opposed to sale to claim right to pre-empt 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 plaintiff-appellant was not held entitled to pre- empt the sale on account of waiver. The learned appellate Court in support of this finding, placed reliance on the judgment of this Court in case of Deva Nand and others Vs. Smt.Kaushalya Devi and others, 1985 PLJ 11 wherein it was held as under:- 3 RSA No.3096 of 1985 “The sum and substance of the above ruling is that to constitute waiver on the part of the pre-emptor it has to be established that before effecting the sale, the property had been offered for sale to the pre-emptor by the vendor and he had refused to purchase it or by some word or action, the pre-emptor had waived his right, i.e.had undertaken not to exercise his right of pre-emption 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 pre-emptive right would not be exercised.” The conduct of the plaintiff-appellant was held to be a ground to disentitle him to pre-empt the sale. Consequently, learned appellate Court dismissed the suit, by accepting the appeal. 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 pre- emption?” 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 pre-emption, and also the fact, that no notice under Section 19 of the Punjab Pre-emption 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 pre-emption, as no offer of sale, was proved to have been made to the plaintiff-appellant. 4 RSA No.3096 of 1985 On basis of the contention referred to above, it was prayed that substantial question of law, be answered in favour of the plaintiff-appellant, and judgment and decree passed by the learned appellate Court be set aside and that of trial Court is restored. 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 plaintiff-appellant had taken active part in sale in favour of the vendees-respondents, therefore, by his act had waived his right to pre-empt the sale. The conduct of plaintiff-appellant in the case of pre-emption suit assumes more importance as the right of pre- emption is a piratical right which can be defeated by any means. 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 Vs. 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 well- known that in the law of pre-emption the general principle 5 RSA No.3096 of 1985 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 pre-emptive right has the effect of the forfeiture of such a right. So far as the law of pre-emption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant’s right under Section 26-F 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 Vs. Nand Kisore 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 pre- emptor not only came to know of the sale immediately but he assisted the purchaser-appellant 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. 6 RSA No.3096 of 1985 4. Legal approach of the High Court, thus that no estoppel could arise unless notice under Section 8 of the Rajasthan Pre-emption Act (in brevity the ‘Act’) was given by the seller and pre-emptor 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 pre-emptor knew that the property was for sale and he had even obtained details of lots he was precluded form basing his claim on pre-emption.” In view of the authoritative pronouncements of the Hon’ble Supreme Court referred to above, the act of the plaintiff-appellant 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 plaintiff- appellant had actively participated in the sale, and thereby waived his right to pre-empt 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. ( Vinod K. Sharma ) Judge 28.07.2010 sd 7