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Bala Ram Vs. Amar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberL.P.A. No. 23 of 1969
Judge
Reported inAIR1973HP13
AppellantBala Ram
RespondentAmar Singh and ors.
Appellant Advocate S. Malhotra, Adv.
Respondent Advocate Kailash Chand, Adv.
DispositionAppeal dismissed
Cases ReferredTeja Singh Warvam Singh v. Bir Singh Lakhu.
Excerpt:
- .....the plaintiff alleged that he was a collateral of hoshiaru. husband of gori, who had sold the land in suit on november 30, 1961 to the defendants for an ostensible consideration of rs. 1,700/-. the plaintiff sought to enforce a right of pre-emption against the vendees who were strangers. the suit was contested on a number of grounds, including the ground that the plaintiff had waived his right of pre-emption. the plea of waiver was founded on two allegations. it was alleged, firstly, that the plaintiff had taken active part in the negotiations for sale and. secondly, that a partition of the land sold had taken place by consent between the plaintiff and the vendees. the trial court rejected the former allegation and held as to the latter that it did not amount to a waiver. finding.....
Judgment:

R.S. Pathak, C.J.

1. This appeal is directed against the judgment and decree of H. R. Khanna, J. in a suit for possession.

2. The plaintiff alleged that he was a collateral of Hoshiaru. husband of Gori, who had sold the land in suit on November 30, 1961 to the defendants for an ostensible consideration of Rs. 1,700/-. The plaintiff sought to enforce a right of pre-emption against the vendees who were strangers. The suit was contested on a number of grounds, including the ground that the plaintiff had waived his right of pre-emption. The plea of waiver was founded on two allegations. It was alleged, firstly, that the plaintiff had taken active part in the negotiations for sale and. secondly, that a partition of the land sold had taken place by consent between the plaintiff and the vendees. The trial court rejected the former allegation and held as to the latter that it did not amount to a waiver. Finding that the plaintiff had a right of pre-emption and that the right had not been waived. it decreed the suit for possession of theland by pre-emption on payment of Rs. 1,700/- by the plaintiff. Bala Ram, one of the defendants, preferred an appeal and the lower appellate court, although it affirmed the other findings of the trial court including the finding that the plaintiff had not participated in the negotiations for sale upheld the contention of Bala Ram that by consenting to partition, the plaintiff had waived his right of pre-emption.' The suit was dismissed. In second appeal before this Court, the plaintiff assailed the finding of the lower appellate court that by agreeing to partition he had waived his right of pre-emption. The contention found favour with the learned Single Judge and setting aside the decree of the lower appellate Court he decreed the suit for possession of the land by pre-emption.

3. We have heard learned counsel for the parties, and we are of opinion, that the view taken by the learned single Judge is right In Thamman Singh v. Jamal-ud-din, (1885) ILR 7 All 442 subsequent to the sale of a one third (Share in a village in his favour the vendee applied for partition of the share and a co-sharer. who had a right of pre-emption in respect of the same, made no objection to the application, and the partition was effected. The co-sharer afterwards set up a claim to pre-emption. A Division Bench of the Allahabad High Court held that there was nothing in the conduct of the pre-emptor during the partition proceedings which could amount to estoppel or to a waiver of his right of pre-emption. The decision in that case received the approval of a Division Bench of the Lahore High Court in Vir Singh v. Nihal Chand, AIR 1925 Lah 178. Reference may also be made to Teja Singh Warvam Singh v. Bir Singh Lakhu. AIR 1963 Punj 483 (FB). The courts below have rejected the contention that the plaintiff had taken part in the negotiations for the sale of the land. His conduct during the partition proceedings did not amount to waiver. We are unable to hold that the plaintiff can be said to have waived his right of pre-emp-tion.

4. Accordingly, the appeal is dismissed. There is no order as to costs.


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