JUDGMENT

1. Gosain Bhoja Ram sought to pre-empt a sale effected on on the 26th November 1918 by which Pandit Kanshi Ram bought certain land from Sahib Diyal and others for Rs. 6,499-1-4. The vendee defendant pleaded inter alia that the plaintiff had waived his right to pre-empt by agreeing to the sale in his favour as well as by certain conduct on his part subsequent to the sale which, it was pleaded, amounted to acquiescence on his part. The Trial Court dismissed the suit holding these allegations established. The plaintiff thereupon appealed to the learned District Judge who took a different view and accepting the appeal remanded the case for a decision on the remaining issues. Against this order of remand the defendants have come up to this Court in second appeal through Mr. Fakir Chand.

2. Firstly, it was alleged by the appellants that the plaintiff had in the presence of certain persons, who were produced as witnesses, definitely agreed to the sale by Sahib Diyal, etc., to the vendee-appellant. The learned District Judge has considered the evidence of these witnesses and has definitely refused to believe them. It has, therefore, been found as a fact that the plaintiff did not consent to the sale prior to the 26th November 1918, and as this is a finding on a question of fact, we are precluded from going into it.

3. Next it was urged that the plaintiff was mortgagee with possessian of some of the land sold and mortgagee without possession of certain other parts of it; that subsequent to the sale he had received the monies due to him as mortgagee from the vendee without any protest or without expressing any intention of enforcing his right of pre-emption. This conduct on his part, it was urged, amounted to acquiescence. Further, it was said that these monies had been paid to him by the vendee on a demand made by him. As to the latter point the learned District Judge has held that it has hot been proved that the plaintiff demanded his money from the vendee. This again is a question of fact which we cannot examine in second appeal. There thus remains only his conduct in accepting the money from the vendee and to this circumstance must be added the fact that the plaintiff did not institute his suit till the last possible moment.

4. The authorities cited by the learned District Judge support the view taken by him. In Baijnath v. Ramdhari Chowdhry [1908] 35 Cal. 402 their Lordships of the Privy Council make the following:

"Until a decree for pre-emption was made, Nirbhoy owned the land as purchaser, and had a right to redeem. The taking out of the money by the plaintiffs as mortgagees, was no recognition of anything more than this, and was quite consistent with the claim to pre-empt." The conduct of the plaintiff in the present case in accepting the money from the vendee is similarly quite consistent with his claim to pre-empt and cannot be regarded either as an act of acquiescence or waiver of such claim on bis part. We, therefore, dismiss this appeal with costs. The order of remand will stand.