P.V. Dixit, J.
1. This is an appeal by the plaintiff whose pre-emption suit has been dismissed by the Courts below.
2. The plaintiff's case was that he was the owner of a house adjacent to the house in suit which belonged to one Sheochand; that Sheochand sold his house on 28-5-1949 by a registered sale-deed to the respondent Laxminarayan that the deed recited a consideration of Rs. 951/- for the sale but the sale was actually for Rs. 600/-; and that Sheochand sold the house and Laxminarayan purchased it without informing him of the intended sale and without giving him any opportunity to pre-empt the property.
The plaintiff proceeded to allege that on 2-6-1949 Laxminarayan sold the house to the respondent Mishrilal by a registered sale-deed for a supposed consideration of Rs. 1450/-. On these allegations, the plaintiff claimed that he was entitled to pre-empt the property for Rs. 600/-. The defendants contested the suit inter alia on the ground that the plaintiff was asked whether he wished to purchase the house and that he had declined.
The Courts below found that the sale in favour of Laxminarayan was for Rs. 951/-; that the respondent Laxminarayan sold the house to the respondent Mishrilal for Rs. 1450/-, and that the plaintiff had waived his right to purchase the pro-perty at the time of both the sales. On these findings, the plaintiff's suit was dismissed.
3. In this appeal, there is no dispute that the plaintiff is the owner of a house adjacent to theone which Sheochand sold to Laxminarayan and that the sale in favour of Laxminarayan was for Rs. 951/. The appellant has not challenged the finding of the lower Courts that Sheochand sold the house to Laxminarayan for Rs. 951/.
The argument of Mr. Sanghi, learned counsel for the appellant, is that there is no evidence whatever to show that the plaintiff was given an opportunity to purchase the property for Rs. 951/- when a definite agreement to purchase the house had been entered into between Sheochand and Laxminarayan; and that the evidence on record was vague and indefinite even to hold that the plaintiff was at any time, asked to purchase the property.
4. In my opinion, in the present case there does not exist any evidence on which the finding that the plaintiff had waived his right to purchase the property for Rs. 951/- could be given. The plaintiff Mishrilal stated in his evidence that Sheochand did not give him any notice that he intended to sell the house to Laxminarayan.
He was not asked any question in cross-examination as to whether Sheochand or Laxminarayan approached him at any time after the agreement to sell had been arrived at between them and asked him to purchase the house for Rs. 951/- if he so wished. Sheochand made a general statement that he had orally asked Mishrilal to purchase the house and that Mishrilal had declined. He did not say as to when, where and for how much amount Mishrilal was asked to exercise his right to preemption and purchase the house.
The statement of Laxminarayan is equally vague and general. He simply said that he had told the plaintiff that he was purchasing the house and that if he wished he could purchase it. This is all the evidence upon which the lower Courts have relied in giving the finding that the plaintiff had refused to purchase and was, therefore, debarred from exercising his right of pre-emption.
It will be seen that the evidence of Sheochand and Laxminarayan, who are the only material witnesses on this point, is so vague, general and evasive that on it cannot even be held that the plaintiff was at any time asked to purchase the property. To support the plea of waiver it was incumbent on the respondents to establish that Sheochand and Laxminarayan had concluded an agreement of sale and the plaintiff was approached and asked to purchase the house for Rs. 951/-, the consideration for which Laxminarayan was going to purchase the house.
There is no such evidence. Even if it is held on the evidence on record that before the agreement of sale had been entered into between Sheochand and Laxminarayan the plaintiff was approached by them and he assured them that he did not wish to purchase the property, that cannot debar the plaintiff from exercising his right of pro-emption. In Govindsa v. Ismail, ILR 1949 Nag 933. (AIR 1950 Nag 22) (A), it has been held that rh6 purchaser who settles his barqain with the vendor and buys property relying on the prior assurance of the preemption that he will not pre-empt cannot successfully set up the plea of estoppel in a suit for preemption.
In that case, it was observed that the pre-emptor, who, even if before an agreement of sale, assures the purchaser that he will not pre-empt, is not making any representstion about any fact except in so far as his intention at that time is afact, and further that when there is not even an agreement of sale between the vendor arid the purchaser, the assurance of the pre-emptor that he will not pre-empt does not amount to any representation as to an existing fact. In Kanhai Lal v. Kalka Prasad, ILR 27-All 670 (B), at p. 676 it was held:
'.... in order to debar a party entitled to preempt a sale from exercising his right an opportunity to purchase must be given when a definite agreement to purchase at a fixed price has been entered into with a stranger. It is not enough to offer property to a person entitled to pre-empt before an agreement to purchase has been entered into with a third party.....'
In the instant case, there is no averment of the defendants much less proof, that the plaintiff was asked to purchase the property for Rs. 951/- when a definite agreement to purchase the house for Rs. 951/- was entered into by Laxminarayan with Sheochand. Having regard to the decisions, referred to above the finding of the lower Court that the plaintiff refused to purchase the property cannot be sustained.
5. The Courts below also seemed to think that the plaintiff-appellant had waived his right to pre-empt the property as even at the time of the sale of the house by Laxminarayan to Mishrilal, the respondent, the plaintiff had declined to purchase though Mishrilal gave a notice of the intended purchase and that the plaintiff could not preempt the property without paying Rs. 1450/-.
It is not the case of the respondent Mishrilal that he has an equal right with the plaintiff to pre-empt or a superior right. That being so, the sale of the property to him by Laxminarayan and the alleged refusal of the plaintiff to purchase the property at the time of that sale for Rs. 1450/- is of no consequence. The plaintiff's right to pre-empt is founded on the sale of the house by Sheochand to Laxminarayan and is not affected by the subsequent sale by Laxminarayan to the respondent Mishrilal.
6. The result, therefore, is that the plaintiff's appeal is allowed on condition that he shall pay the sum of Rs. 951/- in the trial Court within a period of two months in default whereof the suit ball stand dismissed with costs. As regards costs. the plaintiff no doubt failed in the lower Court in the matter of price to be paid. But the defendants chose to resist the suit inter alia on the ground of waiver. On the question of waiver, they failed miserably. There is, therefore, no justification for disallowing the plaintiff his costs in all the Courts. The appellant shall, therefore, get his costs in case the price is paid and the appeal succeeds.