The right of pre-emption is a weak, inequitable right that can be waived through express or implied conduct. Knowledge of a sale combined with silence or participation in the transaction constitutes waiver, and such claims cannot succeed where revenue records establish the property is not held jointly.

VIKAS BAHL, J. (ORAL)

INDEX

CHALLENGE IN THE PRESENT APPEAL

1. Defendant No.2 (presently represented by her legal representative) is in second appeal which has been filed under Section 41 of the Punjab Courts Act, 1918.

2. Challenge in the present appeal is to the judgment dated 14.02.1991 of the First Appellate Court vide which the judgment of the trial Court dated 16.03.1989 has been set aside and the suit for declaration and possession by way of pre-emption, originally filed by Bhuru and pursued by Hawa Singh (respondent No.1) has been decreed on payment of the requisite amount.

ARGUMENTS ON BEHALF OF THE APPELLANT

3. Learned counsel for the appellant has argued that in the present case, the plaintiff had waived his right of pre-emption. It is submitted that in the written statement in paragraph 4 of the preliminary objections and paragraph 3 of the reply on merits, it was specifically stated that Bhuru, the deceased plaintiff was involved in the sale of the disputed land and he was also present at the time of scribing and completion of the agreement to sell and the registry and thus was aware of the sale of the disputed land. It is argued that a specific issue with respect to the plaintiff having waived his right of pre-emption was framed by the trial Court, which issue was decided in favour of the defendants by the trial Court. It is argued that PW-1, Hawa Singh, in his cross-examination, has admitted the fact that when the deal of sale of the disputed land was being made, he and Bhuru were present and thus, it is apparent that at the time of the agreement to sell dated 30.11.1981, Ex.D2, by Phool Chand defendant no.1 in favour of the present appellant Sukhma the said two persons were present and had knowledge about the said agreement but never objected to the said agreement being entered into, and thereafter, did not even raise any objection with respect to the registered sale deed dated 08.12.1981 and had filed the suit only on 10.11.1982 after the present appellant had fully paid the sale consideration and had also acted upon the said transaction.

4. It is submitted that from the said conduct, respondent No.1 as well as the original plaintiff Bhuru have apparently acquiescenced to the transaction and thus waived off their right of pre-emption and were even estopped from filing the suit for the same.

5. In support of his arguments, learned counsel for the appellant has relied upon the judgment of the Hon’ble Supreme Court in the case of Indira Bai vs. Nand Kisore reported as 1990(4) SCC 668. It is further submitted that even the further conduct of the plaintiff disentitles him to file the present suit, inasmuch as, the said Phool Chand had also entered into an agreement to sell with the husband of the present appellant i.e., Des Raj on 05.01.1981 and the said agreement to sell has been duly exhibited as Ex.D1 and that the sale deed dated 03.06.1981, Ex.D17 was executed in favour of Des Raj with respect to land measuring 34 kanals and 4 marlas. It is submitted that the plaintiff had filed a suit for pre-emption regarding the said sale deed also against Des Raj and the adopted son of Phool Chand on 10.04.1982 (Ex.D18) and since the plaintiff had not deposited the mandatory amount as ordered by the Court and, thus, the suit was dismissed on 01.06.1982 (Ex.D19) and the plain