Judgment.-This is a regular first appeal by Mohammad Ismail and other defendant-vendees from the judgment of the learned District Judge decreeing the plaintiffs suit for pre-emption against them. The suit for pre-emption was instituted on the ground that the house sold to the vendees was contiguous to that of the plaintiff. This was admitted by the defendants but they resisted the suit on the ground that the plaintiff had waived his right of pre-emption and was therefore estopped from instituting the suit. They also pleaded in the alternative that they had spent Rs.500 in keeping the property in dispute in a state of good repair and were therefore entitled to a decree for that amount, if the claim for pre-emption succeeded. The learned District Judge who tried the suit framed necessary issues on the pleas put forward by the defendants and, as stated above, ultimately

1950 Raj./1 decreed the suit in plaintiffs favour and disallowed the defendants claim for cost of improvements.

2. In this Court the learned counsel for the defendant-vendees has not seriously contested the finding of the learned District Judge on the question of waiver. The provisions of the statute so far as Mar war is concerned are clear and, according to these, until a clear notice is given through Court, the plaintiff cannot be held to have relinquished his right to preempt and the suit instituted by him is competent. The term waiver is not used in S.5 of the Act which runs as below:

"When any person proposes to sell any property in respect of which any person has a right of pre-emption, he shall give notice to the persons concerned of the price at which he is willing to sell such property. Such notice shall be given through the Court in which a suit for pre-emption may be instituted."

3. According to S.7, the importance of the lack of notice as mentioned in S.5 is further brought out inasmuch as when a suit is instituted by a person entitled to a right of pre-emption he may mention as a ground that no due notice was given as required by the law. In the circumstances, we do not wonder that the learned counsel did not press this question any further. He, however, stoutly contended that, even if the plaintiffs conduct did not amount to waiver on account of the provisions of S.5 of the Act, the provisions of S.115, Evidence Act, may still intervene and the plaintiff may, on account of some representation or act or conduct, be estopped from asserting his claim for pre-emption. He referred to some authorities of the Lahore High Court in support of his contention, but conceded that the language of the relevant sections of the Punjab Pre-emption Act and the Mar war Pre-emption Act was not identical. In Marwar, where the statute permits the institution of a suit when no notice is given, resort cannot be had to the general principles of estoppel. This means that, even where there has been a representation by the plaintiff to the vendee, it would still be necessary for the vendor to give a notice as contemplated by law and if this notice is not given, no amount of evidence of the representation can take its place and thereby nullify the express provisions of the statute. Although apprised of this position, the learned counsel still insisted upon bringing to the notice of this Court some portions of the evidence led by him in order to prove the estoppel. He particularly referred in this connection to a stamped paper which is alleged to have been purchased by the plaintiff Abdul Gani as an agent for one Amiruddin for the purpose of a rent-note being executed by him in favour of the vendee. The contention of the learned counsel was that there was an agreement between the plaintiff and the vendee that, in case the latter let out the house to Amiruddin, the plaintiff would relinquish his right to pre-empt the sale. Even if it may be said to amount to some kind of an estoppel, it was only a conditional relinquishment of the right and the fact remains that that condition was neve

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