Sanjay K. Agrawal, J.

The substantial question of law involved, formulated and to be answered in this plaintiff's second appeal is as under: -

"Whether both the Courts below are justified in holding that the plaintiff has no preferential right of pre-emption under Section 22(1) of the Hindu Succession Act, 1956 by holding that he has waived his right of pre-emption by agreement dated 29.10.1980 (Ex.D/1)?"

2. With the consent of parties, the substantial question of law is reframed as under: -

"Whether both the Courts below are justified in holding that the plaintiff has no preferential right of pre-emption under Section 22(1) of the Hindu Succession Act, 1956 by holding that he has waived his right of pre-emption by agreement dated 20.10.1965 (Ex.P/1)?"

(For the sake of convenience, parties would be referred as per their status and ranking shown in the plaint before the trial Court.)

3. The suit house bearing Corporation No.29/451, Hatripara Ward, Tahsil & District Raipur was held originally by Tularam Soni who died leaving behind him his three sons Radheshyam, Vidyanand (original plaintiff) and Ramesh alias Raghunath Prasad (defendant No.2). Three sons effected an amicable partition evidenced by agreement Ex.P-1 dated 20-10-1965. Middle portion fell to Raghunath Prasad (defendant No.2) while northern and southern portions fell to remaining two brothers. It was stipulated between the three brothers that dividing wall shall be constructed after Nistar arrangements are done and thereafter, steps for mutation in the Corporation shall be taken. Raghunath Prasad defendant No.2 by registered sale deed dated 29-10-1980 sold his share in middle portion to Smt. Prembati Bai (original defendant No.1) giving rise to an action claiming pre-emption by the original plaintiff, the elder brother.

4. The trial Court dismissed the suit finding inter alia that the plaintiff has no right of pre-emption and also negatived his claim under Section 22 of the Hindu Succession Act, 1956 and also held that the right of pre-emption was waived by agreement Ex.P-1.

5. In appeal by the plaintiff, the findings and decree dismissing the claim for pre-emption have been upheld by the first appellate Court against which the plaintiff has preferred this second appeal in which substantial question of law has been framed and formulated, which has been set-out in the opening paragraph of this judgment.

6. Mr. Viprasen Agrawal, learned counsel for the appellants/plaintiffs, would submit that both the Courts below are absolutely unjustified in not granting decree in favour of the plaintiff under Section 22(1) of the Hindu Succession Act, 1956. He would further submit that Vidyanand Soni original plaintiff being the coheir had a right of pre-emption to purchase the suit property in order to maintain integrity of the family and to avoid induction of third party in the ancestral house of the parties. He would rely upon a decision of the Supreme Court in the matter of Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and others, (1960) AIR SC 1368 and as such, the finding recorded by the two courts below in not granting the suit for pre-emption, pre-emptory right in favour of the plaintiff is liable to be set aside and the suit be decreed with costs.

7. Miss Swati Upadhyay, learned counsel appearing for LRs of respondent No.1, would support the judgments & decrees of the Courts below and would submit that both the courts below have rightly dismissed the suit in favour of defendant No.1 which is strictly in accordance with law and no interference is warranted and the substantial question of law be answered in favour of defendant No.1.

8. Mr. Abhijeet Mishra, learned amicus, has brought out the legal position relating to Section 22(1) of the Hindu Succession Act, 1956 (for short, 'the Act of 1956').

9. I have heard learned counsel for the parties and considered their rival submissions made herein-above and went through the record with utmost circumspection.

10. Th