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Zila Ram and ors. Vs. Jhandu Ganga Ram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 129 of 1964
Judge
Reported inAIR1967P& H448
ActsPunjab Pre-emption Act, 1913 - Sections 19 and 20; Evidence Act, 1872 - Sections 115
AppellantZila Ram and ors.
RespondentJhandu Ganga Ram
Appellant Advocate S.K. Jain, Adv.
Respondent Advocate B.R. Aggarwal, Adv.
DispositionAppeal allowed
Cases Referred and Sardar Mohammad v. Khuda Bakhsh
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........half share and puran chand owned 1/8th share in some area of land. admittedly in december, 1960. bahadur chand and others agreed to sell their one-half share at the rate of rs. 1,250/- per kila to jhandu, who was tenant in cultivation of the entire land and earnest money of rs. 100/- was paid by jhandu. this bargain was not completed. there is a conflict between the parties as to what actually happened and i will discuss this a little later. it, is however, admitted that a notice was sent on 23rd of december, 1960, to the other party to have the sale-deed executed by 31st of january, 1961. as already stated, this bargain was not completed, and on 20th of february, 1961, bahadur chand etc., sold their one-half share and puran chand joined with them in the sale of his one-eighth.....
Judgment:

Harbans Singh, J.

1. Facts giving rise to this second appeal may briefly be stated as under: Bahadur Chand and others owned one half share and Puran Chand owned 1/8th share in some area of land. Admittedly in December, 1960. Bahadur Chand and others agreed to sell their one-half share at the rate of Rs. 1,250/- per kila to Jhandu, who was tenant in cultivation of the entire land and earnest money of Rs. 100/- was paid by Jhandu. This bargain was not completed. There is a conflict between the parties as to what actually happened and I will discuss this a little later. It, is however, admitted that a notice was sent on 23rd of December, 1960, to the other party to have the sale-deed executed by 31st of January, 1961. As already stated, this bargain was not completed, and on 20th of February, 1961, Bahadur Chand etc., sold their one-half share and Puran Chand joined with them in the sale of his one-eighth share.

The property was sold to Zila Ram and others vendees-appellants by means of two sale-deeds at the rate of Rs. 1,750/- per acre for a total consideration of Rs. 1,900/- Thereafter a sum of Rs. 80/- was sent to Jhandu and he received this as the refund of the earnest money without any protest Jhandu brought a suit for possession by pre-emption, on 20th of February, 1962.

2. It is not now in dispute that Jhandu is a tenant of the land. The main dispute between the parties was whether the plaintiff had waived his right of pre-emption. The trial Court found that the right had been waived and, therefore, dismissed the suit qua one-half share of Bahadur Chand and others. As regards one-eighth share of Puran Chand it was round that there was no waiver and, consequently the suit was decreed and this one-eighth share is no longer in dispute Jhandu alone went up in appeal and his appeal was accepted and it was held that Jhandu was entitled to a notice to take up the entire bargain of 5/8th share in the land and, therefore, the previous offer of sale by Bahadur Chand etc. of one-half share did not amount to a waiver. Consequently, the appeal was accepted and the suit was decreed in its entirety. The vendees have come up in appeal.

3. It is now well settled that apart from the procedure laid down in Sections 19 and 20 of the Pre-emption Act, the plaintiff-pre-emptor can waive his right or, by his conduct, may be estopped from seeking to enforce his right of pre-emption. The present is certainly not a case of estoppel. The sole question for determination is whether in the circumstances of this case, Jhandu can be said to have waived his right of pre-emption qua one-half share of Bahadur Chand etc.

4. As already indicated, it is not denied that in December, 1960, there was an agreement between Bahadur Chand etc., on one side and Jhandu on the other for the purchase of one-half share of Bahadur Chand etc. This was at the rate of Rs. 1,250/- per acre and Rs. 100/- were paid as earnest money. Furthermore it is admitted by Jhandu in his statement before issues that he had received back Rs. 80 as refund of the earnest money.

Moreover, it is clear that neither in the written statement nor in the statement made by Jhandu, either before issues or as P. W. 1, is there even a suggestion that any protest was made by Jhandu that his bargain was not completed and that in not completing the bargain Bahadur Chand etc. were at Fault and that there was a breach of the contract. On 23rd of December, 1960, a notice was sent, as already stated, and this is admitted. The second letter addressed is dated 24th of January which refers to some registered letter dated 7th of January, 1961, received from Jhandu and then it is stated as follows:--

'You can have the refund of your Rs. 100 earnest money as you have finished the bargain. You can take back your earnest money by 31st of January. Please take note now your bargain is at an end.'

This was followed by another letter dated 31st of January in which it was stated that Bahadur Chand had visited the village of Jhandu but could not find him and that so far as the return of the earnest money is concerned, as referred to in Jhandu's letter of 7th of January, 1961, he could take back the money within three days by going to Khanna and that thereafter the earnest money would be treated as forfeited. These letters have been produced by the plaintiff, but Jhandu has nowever stated or even suggested that he had protested against any one of these letters or that the statements made therein were incorrect. What is more when he was given Rs. 80/- towards the refund of his earnest money, he quietly received the amount and then waited for a year, after the date of the second bargain, to bring the suit, out of which the present appeal has arisen.

I feel that the above facts leave no manner of doubt that so far as Bahadur Chand and others' one-half share is concerned, it was definitely offered to Jhandu at a price lower than the price for which it was subsequently sold and he did not take the land at that price This would definitely amount to waiver.

5. It was suggested on behalf of the respondent that the offer should be made to the pre-emptor after the bargain has actually been entered into and, secondly, that inasmuch as the subsequent sale was of 5/8th share and not only of one-half, the previous offer was of no avail.

6. In Kanshi Ram Sharma v. Lahori Ram, AIR 1938 Lah 273, a Division Bench had definitely mentioned that the right of the pre-emptor is that before a definite contract with another is entered into, an offer should be made. It will be extremely unworkable if, after entering into a contract with somebody, three months time had to be given to the person who has the right of pre-emption. If the subsequent sale is made within a reasonable time of the previous offer made to the pre-emptor, who has refused to accept that offer, that would, I, think, amount to waiver. In this respect reference was made to Ram Sahai v. Muhammad Tufail, AIR 1929 Lah 265 and Sardar Mohammad v. Khuda Bakhsh, AIR 1935 Lah 884.

7. The only question that remains for consideration is whether Puran Chand's joining in the sale-deed qua his 1/8th share would make any difference. So far as Puran Chand's own share is concerned, that is no longer in dispute. In my view this sale was by two sets of persons, Bahadur Chand and others regarding their one-half share and Puran Chand regarding his one-eighth share.

So far as the share of Bahadur Chand etc, is concerned, that was definitely offered and the offer was refused. Simply because Bahadur Chand etc., and Puran Chand had joined to make one sale-deed would not make any difference, so far as the share of Bahadur Chand etc., is concerned. In fact for the purposes of this matter, each of the deeds in question can be treated to be two deeds, one by Bahadur Chand and others qua their share and the other by Puran Chand qua his share.

8. In view of the above, therefore, I feel that the lower appellate Court was in error in setting aside the judgment of the Court below dismissing the suit of the plaintiff qua the share of Bahadur Chand and others. I, consequently, accept this appeal, set aside the judgment of the lower appellate Court and restore that of the trial Court. The parties are left to bear their own costs in this Court.


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