S.N. Modi, J.
1. This first appeal by the vendee Kala Devi is directed against the judgment and decree of the Additional District Judge No. 2, Jaipur City dated September 20, 1973 decreeing the suit of the respondent Radha Kishan for pre-emption.
2. The dispute relates to a portion of the residential house situated in Mohalla Chowkari Ghat Darwaza, near Math Ka Kuwa, Jaipur City described in para 1 of the plaint. This entire house was owned by vendor Geeta Devi and the respondent pre-emptor Radha Kishan. In pursuance of the agreement executed by Geeta Devi on 22-3-1970 in favour of the appellant's husband Vishan Das (D. W. 4), Geeta Devi sold her share in the house for Rs. 18,601 in favour of the appellant vendee Kala Devi vide registered sale deed dated June 18, 1970.
3. It is common ground between the parties that before the sale of the disputed property, the vendor Geeta Devi did not give any notice as prescribed under Section 8 of the Rajasthan Pre-emption Act, 1966 (hereinafter referred to as the Act) to the pre-emptor. It is, however, admitted by the parties that before the sale actually took place a general notice in the name of the appellant's husband Vishan Das was published in a newspaper showing Vishan Das's intention to purchase the disputed property.
4. The respondent Radha Kishan instituted a suit on Dec. 19, 1970 against the vendee Kala Devi and the vendor Geeta Devi claiming right of pre-emption in respect of the disputed property on the basis of his being a co-sharer with the vendor and also on the basis of enjoyment of certain easementary rights and amenities in the property in question. The respondent Radha Kishan alleged in the plaint that though ostensible price for which the property in dispute was shown as sold by the vendor to the vendee appellant was Rupees 18,601, in fact and reality the actual price paid was only Rs. 12,000. It was further alleged in the plaint that though the vendor had earlier agreed to sell the property to the pre-emptor Radha Kishan for a consideration of Rs. 12,006, but later on the vendor at the instance of the vendee changed her mind and sold away the property to the vendee.
5. The suit was resisted by the appellant-vendee as also by the vendor-respondent No. 2 on the ground that the respondent pre-emptor has waived his right of pre-emption. In this connection it was pleaded that offers were made to the respondent by the vendor to purchase the disputed house in the first week of March, 1970 as also before the sale deed was registered in favour of the appellant, but respondent declined to purchase the same. It was further pleaded that the appellant purchased the disputed property only after the respondent had approved the transaction of sale in favour of the appellant. The appellant and the vendor both averred that the disputed property was sold for Rs. 18,601 and not for Rs. 12,000 as pleaded by the plaintiff-pre-emptor. It was further pleaded that the appellant had spent a sum of Rs. 17,000 on repairs of the disputed property and a decree for possession of the house in dispute can only be passed in favour of the pre-emptor on payment of Rs. 17,000 over and above the amount of the sale price namely Rs. 18,601. The defendant however did not specifically deny the plaintiff's preferential right to pre-empt the disputed property.
6. On the pleadings of the parties the lower court framed the following 6 issues:--
1 vk;kizfroknh ua- 2 ekpZ 1970 ds izFke lIrkg esa fookn xzLr edku dks 18601 :i;s esaoknh dks cspus dk vkQj fd;k Fkk A vkSj oknh us [kjhnus ls bUdkj dj fn;k rFkkvius gd'kqQk dh can dj fn;k
2 vk;koknh gd 'kqQk ds vk/kkj ij edkukr fookn xzLr 12000 :i;ksa es [kjhnus dk vf/kdkjhgS
3 vk;kjktLFkku fiz,Ei'ku ,DV dh /kkjk;sa lafo/kku esa fn;s x;s ewy vf/kdkjksa ds fo:)gksus ds dkj.k voS/k rFkk csvlj gS
4 vk;kizfroknh ua- 1 us edku fooknxzLr [kjhnus ds ckn mlesa 17]000 :i;s ejEer esayxk fn;s gaSa vkSj bl dkj.k izha&,sEV djus dh lwjr esa izfroknh ua- 1 mDrjde vykok dher edku ikus dk vf/kdkjh gS
5 vk;koknh dks izfroknh }kjk rkehj fd;s tkus dk bYe Fkk vkSj mlus dksbZ ,rjkt ughafd;k A vr% og gd&'kqQk dk gd can dj pqdk rFkk ml ij LVksiy ykxw gksrk gS
7. The learned counsel for the defendant vendee in the lower court did not press issue No. 3 which was decided against the defendant-vendee. As regards the other issues the trial court, on consideration of the evidence led by the parties, recorded the following findings:--
(l) That there was no waiver of the right of pre-emption on the part of the plaintiff inasmuch as there existed no reliable evidence to prove that the suit house was offered for sale to the plaintiff for Rs. 18,601 and that the plaintiff refused to purchase the same.
(2) That the sale price agreed and really paid to the vendor by the vendee was Rs. 18,601 and not Rs. 12,000 as pleaded by the plaintiff-pre-emptor.
(3) That though the defendant-vendee carried out repairs and improvements on the disputed property there was no reliable evidence to prove how much amount was spent by her (vendee).
(4) That the defendant-vendee was not entitled to claim any amount spent by her on repairs and improvements inasmuch as she carried out repairs with undue haste and in spite of the warning given by the plaintiff pre-emptor not to carry out any repairs. The question of waiver or estoppel in these circumstances did not arise.
8. The trial court on the basis of the above findings passed a decree for preemption in favour of the plaintiff on the condition that the plaintiff shall deposit in the court Rs. 18,601 upto October 31, 1973. It further ordered that on such deposit of the amount the vendee Kala Devi shall deliver possession of the suit property to the plaintiff Radha Kishan. Dissatisfied with the said judgment and docree the defendant-vendee Kala Devi has preferred this appeal to this Court
9. I have heard Mr. M.B.L. Bhargava the learned advocate for the appellant-vendee and Mr. P.C. Bhandari the learned advocate for the plaintiff pre-emptor Radha Kishan and gone through the entire record of the case.
10. It is not in dispute that the plaintiff had a proferential right to purchase the property in dispute under the Act. The main contention of Mr. M.B.L. Bhargava is that the plaintiff had waived his right of pre-emption, and is therefore, no more entitled to a decree for pre-emption in respect of the disputed property. In this connection my attention has been drawn to para No. 2 of the plaint wherein the plaintiff admitted that the vendor had consulted him in connection with the sale of the disputed property and she (vendor) also agreed to sell the same to the plaintiff for Rupees 12,000. According to the learned counsel, if in the light of the above admission of the plaintiff, the oral evidence produced by the defendant vendee is judged, there exists ample evidence on the record to show that the plaintiff was consulted not only before the agreement to sell was executed between the vendor and the vendee, but also, before the actual sale took place in favour of the vendee. It is urged that the plaintiff Radha Kishan was offered to purchase the property in question and that it is only when he declined to do so, the defendant vendee purchased the same. This sort of conduct on the part of the plaintiff according to Mr. M.B.L. Bhargava, tantamounts to waiver and abandonment of his right of pre-emption so far as the purchase of the property in question by the appellant Kala Devi is concerned.
11. On the other hand it is contended by Mr. P.C. Bhandari learned counsel for the plaintiff-respondent that there is no reliable evidence on record to show that after the agreement of sale was entered into between the purchaser and the seller on 22-3-1970 any offer was made either by the vendee or the vendor to purchase the suit property. He therefore, contends that no question of waiver arises in the present case. Mr. Bhandari also invited my attention to the notice, given by the plaintiff to the appellant and also to her husband Vishan Das and the replies received from them. Learned counsel pointed out that in none of the replies given by the vendee or her husband Vishan Das, there exists any averment as to the waiver of the right of pre-emption on the part of the plaintiff on the ground that the plaintiff had refused to purchase the property on being offered to him at any time before or after the agreement for sale was executed between the vendor and the vendee. Mr. Bhandari has further argued that there exists no documentary evidence to show, even remotely, that the vendor or her husband ever approached the plaintiff and made any offer to purchase the property either before or at the time or after the sale took place. Mr. Bhandari further pointed out that the oral evidence produced in the case by the defendant-vendee is wholly unreliable being afterthought and consists of the persons who are either relatives of the vendee or are highly interested in the success of the vendee. Mr, Bhandari also contended that the right of preemption can be lost only by giving a notice under Section 8 of the Act by the seller and not by anyone else and if such notice has not been given then the plea cannot be taken by the purchaser that the right of pre-emption was lost to the pre-emptor because he did not show his intention to purchase the property after the general notice was published in the newspaper by the purchaser signifying his intention to purchase the suit property.
12. In the present case as already pointed out above it is not in dispute that notice under Section 8 of the Act was not given by the seller to the plaintiff. Sections 8 and 9 of the Act run as under:--
'Section 8.-- Notice to pre-emptors:--(1) When any person proposes to sell, or to foreclose the right to redeem, any immovable property, in respect of which any persons have a right of pre-emption, he shall give notice to all such persons as to the price at which he is proposing so to sell or as to the amount due in respect of the mortgage proposed to be foreclosed, as the case may be.
(2) Such notice shall be given through the civil court within the local limits of whose jurisdiction the property concerned is situated, shall clearly describe such property, shall state the name and other particulars of the purchaser or the mortgagee and shall be served in the manner prescribed for service of summons in civil suits.'
'Section 9.-- 'Loss of right of preemption on transfer.-- Any person having a right of pre-emption in respect of any immovable property proposed to be sold shall lose such right unless within two months from the date of the service of such notice, he or his agent pays or tenders the price specified in the notice given under Section 8 to the person so proposing to sell: Provided that the right of pre-emption shall not be so lost if the immovable property in question is actually sold for an amount smaller than that mentioned in the notice or to a person not mentioned in the notice as purchaser.'
13. The main object of these sections appears to be to safeguard the interest of the prospective purchaser as well as to avoid litigation by allowing the pre-emptor to purchase the property at an initial stage. These provisions in the Act provide that if the seller serves a notice in writing in the manner prescribed under Sub-section (2) of Section 8 of the Act intimating, his desire to sell the property for a specified sum mentioned therein then if the pre-emptor does not exercise his right of pre-emption within the period prescribed under Section 9 of the Act the sale would not be challenged on the ground that the pre-emptor had better title to purchase the property. These sections safeguard the interest of all concerned viz., the purchaser, the pre-emptor and the vendor so that after the sale has taken place nobody thereafter can claim a preferential right to purchase the property. Another purpose of such a notice under Section 8 is that it discloses to the prospective purchaser the name or names of those persons who have a preferential claim to the property by invoking their right of pre-emption. In order to ensure that the notice under Section 8 has been served on the pre-emptor, the legislature has prescribed foolproof method in order to avoid any controversy thereafter about the sale price fixed and the description of the property to be sold. If this procedure is adopted by the vendor and if no steps are taken by the pre-emptor to purchase the property mentioned in the notice then the pre-emptor forfeits his right of preemption. It must, however, be remembered that the steps to be taken under Section 8 are available to the vendor only, and not to the vendee. It is, therefore, argued by Mr. Bhargava that in case of a prospective purchaser who cannot avail the provisions of Section 8 to curtail the pre-emptor's right, the doctrine of waiver would still be available to the vendee if the pre-emptor after notice from the vendee does not come forward to purchase the property and allows the vendee to complete the sale in his favour. In the present case it is contended by Mr. Bhargava that the husband of the vendee published a general notice in a newspaper before the property was actually sold by the vendor and therefore in such circumstances it should be held that the piaintiff-pre-emptor had forfeited his right of pre-emption.
14. In my opinion, there is no substance in the above center on. The preferential right to purchase the property enjoyed by the pre-emptor can only be curtailed or forfeited if the provisions of Section 8 of the Act are resorted to by the seller. The right which the legislature has vested in the seller by virtue of the provisions of the Act cannot be exercised by the purchaser of the property. A general notice issued in the present case by the husband of the vendee in a newspaper signifying his intention to purchase the property and inviting objections, if any, does not cast any duty on the pre-emptor to give any response to such a notice and put forth his preferential right to purchase the property and negotiate with the purchaser to purchase the property. The failure on the part of the pre-emptor in the present case, to pay any heed to such a general notice issued by the husband of the vendee therefore, does not tantamount to waiver of the right of pre-emption on the part of the pre-emptor; 'but the matter would be different if the pre-emptor enters into an agreement with the prospective purchaser that he would not enforce his right of pre-emption if the property was purchased by him. In that event it is open to the purchaser to put forth the plea that the pre-emptor has waived his right of pre-emption in his favour. The question, therefore, arises whether in the present case the plaintiff forfeited or abandoned or waived his right of preemption by any agreement with the vendee or her representatives. There is no documentary evidence in proof of the above fact. The case on the point of waiver solely rests on the oral testimony of D.W. 1 Kala Devi (vendee), D.W. 2 Manna Lal, D.W. 4 Vishan Das (husband of the vendee), D.W. 5 Janki Lal (father of the vendor) and D.W. 6 Parthumal.
15. Before dealing with the evidence of the above witnesses, I would like to point out the material incidents of the right of pre-emption. Their Lordships of the Supreme Court in Bishan Singh v. Khazan Singh, AIR 1958 SC 838 observed:--
'To summarise: (1) The right of preemption is not a right to the thing sold, but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i.e. the pre-emptor takes the entire bargain and steps into the shoes of the original vendee.''
16. The primary right claimed by the pre-emptor as explained by the Supreme Court undoubtedly resides in the pre-emptor even before the sale takes place. The question however, arises whether the pre-emptor can waive his right of pre-emption even before an agreement between the seller and the purchaser to sell the property had actually taken place. In Shobhrajmal v. Mst. Kamla Devi, Civil First Appeal No. 92/73* Hon'ble V.P. Tyagi J. (as he then was) relying upon the decision of the Lahore High Court in Muhammad v. Muhammad AH, AIR 1926 Lah 243 and the decision of the Madhya Pradesh High Court in Mishrilal Hazarilal v. Laxminarayan, AIR 1958 Madh Pra 412 held that to support the plea of waiver it is incumbent on the vendor and the vendee to establish that they had concluded an agreement for sale and that the plaintiff was approached and asked to purchase the property for the consideration for which the vendee was going to purchase the property. I respectfully agree with the view taken by Hon'ble Tyagi J. (as he then was) in Shobhrajmal's case.
17. Bearing in mind the above principle, I now deal with the evidence of the witnesses mentioned above. The recital in para No. 2 of the plaint on which considerable stress has been laid by Mr. Bhargava is, in my opinion, wholly irrelevant on the point of waiver. In para No. 2, the plaintiff alleged that the vendor agreed to sell the property to the plaintiff for Rs. 12,000. In para No. 3 of the plaint the plaintiff alleged that the vendee by exercising her power over the vendor and with a view to harm the plaintiff somehow obtained her willingness to sell the property in question to the vendee for the amount which was offered by the plaintiff. A reading of these two paras clearly goes to show that the agreement between the plaintiff and the vendor, if at all it took place, must have taken place long before March 22, 1970 on which date the vendor executed agreement to sell the property in question in favour of the vendee. In this view of the matter no inference of waiver on the part of the plaintiff-pre-emptor can arise from the allegation contained in para 2 of the plaint. There is thus no substance in the argument of Mr. Bhargava that the admission contained in para No. 2 is relevant on the question of deciding waiver on the part of the plaintiff.
18. I now turn to the evidence produced by the defendant vendee to prove waiver of the right of pre-emption by the plaintiff Radha Kishan. The first important witness in this connection is the defendant Kala Devi. She has appeared in the witness box as D.W. 1. The relevant portion of her statement in exami-nation-in-chief runs as under:--
^^edku [kjhnus ds igys jk/kkfd'kuls iwNk Fkk fd vkidksa dksbZ ,rjkt rks ugha gS bl ij jk/kkfd'ku us dgk dksbZ ,rjktugha gS A**
On being cross-examined she stated as under:--
^^eSaus jk/kkfd'ku ls eqUukyky]tkudh yky ds lkeus iwNk Fkk fd vki dks ,rjkt rks ugha gS A ,xzhesUV ds 10&15fnu igys iwNk Fkk A**
Even if the statement of D.W. 1 Kala Devi is accepted on its face value it does not support the plea of waiver as the offer according to her was made by her to the plaintiff long before the agreement of sale was executed between her and the vendor. Apart from that her statement to my mind is clearly an afterthought and has no truth in it. Had Kala Devi enquired from the plaintiff and had the plaintiff not objected to the purchase of the property by her, these facts would have found place in her reply Ex. 13 dated 21-7-70 to the plaintiff's notice Ex. 1'2. Omission to mention these important facts in reply Ex. 13 leads to a reasonable inference that the story about consulting the plaintiff to purchase the property and his not objecting to it is clearly afterthought and concocted.
19. The next important witness is D. W. 4 Vishan Das. He is the husband of the defendant Kala Devi D. W. l. In his examination-in-chief he deposed as under:--
^^jk/kkfd'ku ls [kjhnus ds igysiwNk Fkk mlus dgk eq>s dksbZ ,rjkt ugha gS A**
In cross-examination he stated as follows:--
^^jk/kkfd'ku ls blfy;s iwNk fdbldk bdjkiu iMrk Fkk A ,xzhesUV ls ,d grs igys jk/kkfd'ku us dgk fd eq>s ,rjktugha gS A tkudhyky] ijrwey] eqUukyky o dyk nsoh ds lkeus ckr gqbZ fooknxzLr edkuds pkSd esa ;g ckr gqbZ A**
It may be stated at once that the testimony of this witness is no better than D.W. 1 Kala Devi. According to the witness the plaintiff did not object to the sale of the property in favour of the vendee before the agreement for sale was executed between the vendor and the vendee. Not a word has been said by him if the plaintiff was consulted after the agreement for sale was executed on March 22, 1970. Besides that, the plaintiff sent a notice Ex. 8 to D.W. 4 Vishan Das on 6-7-1970 claiming preferential right to purchase the property in dispute. But, it is significant to note that he in his reply Ex. 11 did not mention this important fact viz., that the plaintiff had waived his right of pre-emption by expressly agreeing that he would have no objection if the property was purchased by She defendant-vendee. His testimony like that of D.W. 1 Kala Devi is clearly afterthought and concocted.
20. The next important witness is D.W. 2 Manna Lal. He is a neighbour and he happens to be present at the time when the vendor's father Jankilal settled the deal to sell the property to the defendant vendee. He says that at that time the plaintiff Radha Kishan was also present. He further says that Radha Kishan asked Janki Lal in his presence to sell the property in dispute to him (Radha Kishan) for Rs. 12,000, but Janki Lal replied that he was prepared to sell the property to him if he paid Rs. 18,601. The witness then says that thereafter he left for his house and no agreement to sell was executed before him. On being cross-examined he showed his inability to mention the date or month when the aforesaid talk took place between Radha Kishan and Jankilal. He however, stated that the said talk took place in the year 1970 at 10-30 or 11 a.m. and at that time Parthumal and Ram Singh were also present. From his testimony it does not follow that the alleged talk between Radha Kishan and Jankilal took place after March 22, 1970. His evidence in my opinion does not prove waiver on the part of the plaintiff. Besides that, he appears to be a chance witness. I have carefully gone through his statement and I have no hesitation to say that he is not a reliable witness.
21. The next, witness is D.W. 5 Jankilal, the father of the vendor Geeta Devi. In his examination-in-chief he totally denied having any talk with Radha Kishan about the sale of the property in dispute. But on being cross-examined he pointed out the presence of Radha Kishan at the time he had a talk with Vishan-das about the sale of the property. He goes on saying that at that time he asked Radha Kishan to purchase the property in dispute but Radha Kishan' replied that he possessed no money to purchase the property. On being further cross-examined he showed his inability to point out the date and month when he offered to sell the property to Radha Kishan. It is apparent from his statement that in cross-examination he did not stick to his statement which he made in his examination-in-chief. He being the father of the vendor is highly interested person. If the property in dispute had in fact been offered to Radha Kishan and if he had declined to purchase on account of paucity of money, D.W. 5 Jankilal or his daughter Geeta Devi would not have failed to take steps under Section 8 of the Act. As already stated above no such step was taken by the vendor or her father Jankilal. His testimony is not at all convincing and deserves to be discarded as unreliable.
22. The last witness examined on the point of waiver is that of D.W. 6 Parthumal. He is a broker. According to the witness, the transaction of sale between the vendor and the vendee was settled through him and the agreement to sell Ex. 1-A dated 22-3-1970 was executed in his presence. The witness has also showed his presence at the time the sale deed was registered in the Sub-Registrar's Office. According to the witness, D.W. 4 Vishan Das in his presence and in the presence of Jankilal asked Radha Kishan to purchase the property in dispute but Radha Kishan declined to do so and also allowed Vishan Das to purchase the property in dispute. The witness on being cross-examined deposed as follows:--
^^jk/kkfd'ku ls ckr ekpZ 1970 esagqbZ Fkh A jftLVh fnukad 18&6&70 dks gqbZ rhu ekg dk E;kn ,xzhesUV esaFkh A
ekpZ ds ckn jk/kkfdlu ls dksbZ ckr ugha gqbZ A,d ckj eSa vdsyk Hkh ekpZ esa gh jk/kkfdlu ls feyk Fkk A jk/kkfdlu ls eS ,xzhesUVds 5&7 fnu igys feyk Fkk A vdsyk feyk Fkk A fc'kunkl oxSjk ls ckr ,xzhesUVds ,d fnu igys gqbZ Fkh A jk/kkfdlu ls blfy, iwNk D;ksafd mudk dejk blh gosyhaes Fkk A lqcg 10&11 cts dh ckr gS ml oDr rd dyknsoh xhrknsoh ds chp lkSnktckuh iDdk gks x;k Fkk A 22&3&70 ls 2&3 fnu igys iDdk gks pqdk Fkk Ajk/kkfdlu ls tc iwNk rks esjs lkeus :i;ksa dk ft ugha vk;k fd fdrus :i;ksa esa[kjhnus cspus dh ckr gS A lkSnk iDdk gksuk Hkh xhrk o dyk nsoh dk jk/kkfdludks ugh crk;k x;k A**
It follows from his statement that he had a talk with Radha Kishan on two occasions. Once he met Radha Kishan 5 or 7 days before the agreement was executed between the vendor and the vendee. The second time he met Radha Kishan 2 or 3 days before March 22, 1970. On the second occasion the vendor Geeta Devi and the vendee Kala Devi were also present. According to the witness Radha Kishan was not informed who was the purchaser of the property and for how much amount the property was being sold. The above statement of the witness is thus materially different from the statements of other witnesses. According to Kala Devi, Radha Kishan on being consulted did not object to the purchase of the property by Kala Devi. But according to D.W. 6 Parthumal neither the name of the purchaser nor the amount for which the property was to be sold was disclosed to Radha Kishan. Besides that, had there been any truth in the statement of Parthumal, Kala Devi would not have omitted to mention this fact in her reply Ex. 13. The oral testimony of D.W. 6 Parthumal is therefore, neither convincing nor reliable.
23. It is significant to note that the vendor Geeta Devi did not appear in the witness box. On the other hand, the plaintiff Radha Kishan in his statement as P.W. 1 and P.W. 5 has totally denied that he had any talk with Geeta Devi or Vishan Das or Janki Lal at any time before or after the sale and that he agreed not to object if the property was purchased by Kala Devi. His statement also shows that he never refused to purchase the property in dispute. There is thus no reliable evidence to prove that after the agreement for sale between the vendor and the vendee was concluded and the price was fixed between them, an approach was made to the plaintiff to purchase the property in dispute for the price settled between the vendor and the vendee. In absence of such evidence it cannot be said that the pre-emptor waived his right of pre-emption in favour of the vendee. The plea of waiver raised by the defendant vendee, therefore, cannot be accepted.
24. The next question that has been agitated before me relates to the payment of the amount spent by the defendant-vendee in carrying out repairs and improvements on the disputed property. In the written statement it was pleaded by the defendant-vendee that she had spent Rs. 17,000 on repairs etc. It may be said at the outset that so far as the fact of carrying out the repairs and improvements on the suit property is concerned there is no denying the fact that the defendant-vendee did carry out repairs and improvements. Even Radha Kishan admitted that the defendant-vendee had carried out repairs and improvements. The relevant portion of his statement as P.W. 1 runs as under:--
^^[kjhnus ds ckn ys'k ysVhueqnkrus cukbZ gS 2 ysVhu ,d ckFk:e cuk;k gS Aeqnkrus dqN dejksa esa fpIl dqNesa lheUV djokbZ gS A fr;kfjes ijnh yxkbzZ gS A irk ugha fdrus dk fpIl dkfd;k A f[kMfd;ksa dejksa esa ikap dejksa esa nwljh yxkbZ gS A fctyh dkdusD'ku o fQfVax djkbZ gS A uy yxok;s gS A nwljh eafty dh eqa
'No man who spends money on improving property knowing fully that he has no title to it can be permitted to deprive the original owner of his right to possession of the property except upon the payment for the improvements which were not affected with the consent of that person. The doctrine of acquiescence is of no help to such a man, for he who knows the true state of affairs cannot say that any mistaken belief was caused in his mind by reason of what the owner said or did.'
Under the circumstances I am not prepared to hold that the vendee can be said to have made the improvements believing in good faith that she was an absolute owner of the property in dispute. Consequently she is not entitled to any amount spent on account of repairs and improvements.
26. There is yet another aspect of the case. The sale deed in the present case was executed in favour of the vendee on June 8, 1970. The plaintiff served a notice to the vendee's husband Vishan Das on 1-7-70. That notice is Ex. 5 on the record. In this notice it was specifically mentioned that the plaintiff has preferential right to purchase the property by way of pre-emption. It was further mentioned that the work of electric fitting is going on in the disputed house. The plaintiff specifically called upon Vishan Das to stop work of electric fitting failing which he would himself be responsible for it. A similar notice was issued by the plaintiff to the defendant Kala Devi on 12-7-1970. This is Ex. 12 on the record. The relevant portion of this notice reads as under:--
^^vki bledku esa dqN rkeksjkr oxSjg dj jgh gS eqofDdy dk izFke ntsZ dk gd 'kq: gksus dsdkj.k vkidks lwfpr fd;k tkrk gS fd mDr edku dk csukek eqofDdy ds uke ls djkosvkSj fdlh fdle dh rkeksjkr ;k fjis;lZ o fctyh o ikuh dk fQfVax ugha djkos vU;Fkkmu lcds [kpsZ ds tqEesokj vki Lo;a gksxh A**
The reply of the said notice by Kala Devi is Ex. 13. In para No. 1 of Ex. 13 she mentioned that she 'has incurred expenses to the tune of Rs. 1,000 apart from the sale price.' In the same notice in para No. 5 she mentioned that 'she has invested about Rs. 5,000 in making construction of latrine, bath room, surface and other repairs.' The reply given by Vishan Das to the notice Ex. 5 is Ex. 11. It is dated 10-7-70. In para No. 2 of this notice Vishan Das has stated that his wife 'has incurred expenses to the tune of Rs. 2,000 apart from the sale price above mentioned.' It further appears from the statement of D.W. 3 Uttam Chand, that the plaintiff Radha Kishan objected to carrying out of repairs even before any notice was sent to Kala Devi or her husband Vishan Das. A perusal of the statement of D. W. 3 Uttam Chand shows that he being the close relative of the vendee used to look after the work of repairs in the disputed house. He has deposed that once Radha Kishan objected to carrying out the work of repairs on the ground that he has right of pre-emption. The witness however, told Radha Kishan that the defendant Kala Devi has purchased the house. Radha Kishan then replied that he would serve a notice in this connection. The relevant portion of his statement runs as under:--
^^ejEer ds oDr eS jkst vkrk tkrkFkk D;ksafd eSa fj'rsnkj gwa jk/kkfd'ku dks ejEer ds oDr eSaus ogka ns[kk Fkk ,dckj jk/kkfd'ku us ,rjkt fd;k Fkk [kjhnus ds ckn fd eSa gdnkj gw vki ejEerer djkvks geus dgk ge [kjhn pqds gS A jk/kkfd'ku us dgk fd eSa dkuwuh uksfVlnwaxk A geus dgk rc ns[k ysaxs A**
27. From the foregoing discussion it can safely be said that the plaintiff objected to carrying out of the work of repairs and improvements verbally as well as by notices at an early stage, but in spite of that, the defendant vendee did not stop the work of repairs and improvements. According to Uttam Chand the repairs and improvements continued for 6 months. According to D.W. 4 Vishan Das the work of repairs continued for about 7 to 8 months. There is thus no doubt that the defendant-vendee did not stop the work of repairs and improvements even after it was objected to by the plaintiff respondent. The learned Additional District Judge in the circumstances rightly held that the repairs and improvements made by the vendee were not made in good faith and on the contrary, she showed 'undue haste in taking up the work of repairs in spite of the warning given by the plaintiff pre-emptor.' The defendant-appellant, in the circumstances, was rightly held not entitled to the amount spent by her on repairs and improvements.
28. Before parting with the case, I would like to mention that from the evidence of D.W. 7 Phool Chand and Ex. A-5, the estimate prepared by him it stands proved satisfactorily that the defendant vendee had spent on repairs and improvements a sum of Rs. 13,795.70. In this connection I would like to mention Section 51 of the Transfer of Property Act wherein it has been provided that the amount to be paid in respect of improvements 'shall be the estimated value thereof at the time of the eviction'. The learned Additional District Judge discarded the testimony of D. W. 7 mainly on the ground that he did not prepare the estimate Ex. A-5 according to the P.W.D. rates prevailing at the time when the improvements were effected i. e. in the year 1970 taut on the rates prevailing in the year 1971. Since the estimated value of the improvements has to be considered on the date of eviction the estimate Ex. A-5 prepared by D.W. 7 Phool Chand cannot be discarded on the ground that it was prepared on the basis of P.W.D. rates, prevailing in the year 1971.
29. In the result the appeal fails and is dismissed with costs with the modification that the defendant shall be entitled to remove such of the improvements carried out by her which could easily and conveniently be removed without injuring the property in dispute.