A right of pre-emption is a weak right and it should subsist up to the date of the suit as well as on the date of passing the decree. The conduct of the plaintiff in agreeing that both the plaintiff and defendant No. 1 could sell their respective properties when they felt its necessity is a definite conduct in negation of the right of pre-emption of each other on the sale of the property.

1. - This is a second appeal by legal representatives of Maganlal plaintiff against the decree of the Additional District Judge, Dungarpur dated October 13, 1976 passed in Civil First Appeal No 11 of 1975 affirming the decree of Civil Judge, Dungarpur dated March 29, 1973 dismissing his suit for pre-emption.

2. Facts leading to the filing of the second Appeal are that the houses of plaintiff Maganlal and vendor Chhabilal were situated in Mohalla Singora Seri in the town of Dungarpur within the same boundary wall. According to the plaintiff, the portion of the house shown in yellow colour in the site plan Ex. 1 and marked ABCD and EFGH belonged to the plaintiff. The portion which was joint between the plaintiff and defendant No. 2 Nasir Mohammed had been shown in Ex. 1 green colour and has been marked as HIWG, VIJK-LMPN. The portion of the house which have been marked as AB, Fl-F, NPQT-D and UVWX and shown in blue colour and the portion marked CQIR and shown in crimson colour belonged to Chhabilal defendant No. 1. At place marked" "there is a khirki which was joint and the plaintiff and Chhabilal defendant No. 1 used to reach to the portions of their respective houses after passing through the chowk and parsal. According to the plaintiff, the walls marked QC/QI/AB and BE were joint walls of the plaintiff and defendant No. 1 Chhabilal. It was alleged that the defendant No. 1 secretly sold two rooms of his house portion to defendant No. 2 on March 11, 1966 for a sum of Rs. 2000/-. According to him, the walls QC and QI of these rooms were joint between the plaintiff and defend at No. 1. This sale was made by Chhabilal in favour of defendant No. 2 Basir Mohammed who is respondent before this Court. On coming to know of this fact, the plaintiff gave a notice to the defendants claiming his right to preemption over the property sold by Chhabilal to Nasir Mohammed. It was further alleged that Prasal marked FGHE belonged to the plaintiff and the same was sold without any authority by the defendant No. 1 to defendant No. 2. The value of this parsal' was assessed by the plaintiff at Rs. 500/-. The plaintiff thus that prayed on payment of Rs. 1500/- by him, the two rooms sold by defendant No. 1 to defendant No. 2 may be reconveyed to him on the ground of his right of preemption. It was further pleaded that in case the Court comes to the conclusion that the plaintiff is liable to pay more amount, he is also ready to pay the same.

3. Both the defendants filed a joint written statement and they denied that parsal marked EFGH is the property of the plaintiff. It was asserted that the parsal was the property of the defendant No. 1 and the same was validly sold by him to defendant No. 2. It was further pleaded that Khirki, chowk with stair case and the two walls were not joint property of the parties but the same were exclusive property of the defendant No. 1 and that the plaintiff had only right of a easement of way through the khirki and chowk. This right was also extinguished on account of its non user. It was further pleaded that an agreement was entered into between the plaintiff and the defendant No. 1 under which the plaintiff had waived his right of preemption, if any, and he had also acquiesced in the transaction of the sale and, therefore, the suit for preemption was not maintainable. The defendant No. 2 also took a plea that after the purchase of the property he had spent an amount of Rs. 1500/- and he was entitled to get this amount in case the plaintiff succeeded. The suit was also said to be under valued.

4. The trial court framed 14 issues in the case. It held that the plaintiff's house was a dilapidated house which had fallen. It was described of as a roda and not a built house. 'Parsal' marked EFGH was held as belonging to Chhabilal defendant No. 1 and therefore, it could be validity transferred by him to the respondent. Under issue Nos. 3 and 4, the trial court held that the plaintiff Maganlal by entering into a compromis