SHARMA, J. - (1.) THE defendant appellant seeks to quash the decree and judgment dated December 19, 1980 of the learned District Judge, Tonk whereby the suit for pre-emption in respect of suit property came to be decreed. THE parties shall be referred hereinafter in the same manner as they were arrayed in the plaint.
(2.) AS per the averments made in the plaint the suit property was sold by the second defendant Bajrang Lal to the first defendant Bhanwar Lal through a registered sale deed executed on November 2, 1978. The plaintiff claimed that his house situated towards the north side of suit property and there is only one way which leads to the suit property and the house of the plaintiff. On account of right of easement the suit property ought to have been sold to the plaintiff but it was sold to the first defendant and thus right of the pre-emption of the plaintiff was affected. The plaintiff therefore sought a decree of pre-emption in respect of suit property. The defendants in the written statements pleaded that the plaintiff had no right of pre-emption in respect of suit property. The property was purchased by the first defendant after obtaining oral consent of the plaintiff and the plaintiff was estopped from challenging the sale and right of pre-emption. AS the plaintiff gave the consent, question of serving written notice did not arise at all. From the pleadings of the parties as many as eight issues were framed which have been incorporated in the impugned judgment. The plaintiffs examined Shanker Lal PW. 1, Shanker Lal PW. 2, Sultan Mohammed PW. 3 and Ladu PW. 4, Whereas the defendants produced Bhairav Lal DW. 1, Krishna Kumar Tiwari DW. 2, Narendra Kumar Jain DW. 3 and Mohan Lal DW. 4. In rebuttal the plaintiff again examined himself. Learned court below after hearing the rival submissions decreed the plaintiff's suit as indicated hereinabove. I have reflected over the rival submissions and carefully weighed the material on record. I have also heard the counsel in respect of application of the first defendants under Order 41 Rule 22 CPC. It is well settled that right of pre-emption is lost by estoppel and acquiescence therefore I proceed to consider issue No. 6 which was framed thus- " Whether the first defendant obtained consent in respect of purchase of suit property and what is its effect on the suit. ?" As said before, the defendants in their written statements averred that the property was purchased by the first defendant after obtaining oral consent of the plaintiff and the plaintiff was estopped from pleading the right of the pre-emption. The witness Bhairav Lal (DW. 1) in the examination in chief categorically stated that he went to the shop of plaintiff and asked plaintiff Shanker Lal whether he had any objection if suit property is purchased by the first defendant (Bhanwar Lal) to which Shankar Lal replied that he did not want to purchase the suit property. At that time Krishna Kumar Tewari was present. I have closely scrutinised the cross examination of Bhairav Lal DW. 1 but he was not cross examined in this regard. Krishna Kumar Tewari (DW. 2) in the examination in chief stated that before purchasing the suit property Bhanwar Lal had a talk with plaintiff Shankar Lal but Krishna Kumar Tewari was also not cross examined to this respect. Narendra Kumar Jain Advocate (DW. 3) also stated that in the month of January 1978 he entered into an agreement with Bajrang Lal (second defendant) in regard to purchase of suit property. Shankar Lal (plaintiff) himself informed him about the suit property and asked him that he has no objection if the suit property is purchased by Narendra Kumar Jain. Plaintiff Shankar Lal (PW. 1) admitted in his statement that he knew Krishna Kumar Tewari being his friend.
(3.) MR. N. K. Maloo, learned counsel appearing for the plaintiff canvassed that the argument that due to lack of cross examination on same point the court is bound to accept the defendants plea, is not tenable. It was contended by the learned counsel that the plea is totally false, improbable and after thought as much as it is difficult to believe that Narendra Kumar Jain and Ram Pal Sharma both advocates who had actually done every thing in the transaction would have taken the risk of verbal conversation rather than issuing notice under Section 8 of the Rajasthan Pre-emption Act. Therefore in the facts of the case the plea of estoppel is totally false and unbelievable. Reliance was placed on The Commissioner of Income Tax vs. Durga Prasad More (1), Sachindra Nath vs. Nilima (2), Sukhraji vs. Calcutta Transport Corporation (3), and Ambika Singh vs. State On the other hand Mr. S. M. Mehta, learned Senior Counsel placed reliance on Indra Bai vs. Nand Kishore (5) and A. E. G. Carapiet vs. A. Y. Derderian (6 ). Undeniably, the plaintiff had failed to cross examine the witness Bhairav Lal (DW. 1) and his witness Krishna Kumar Tewari (DW. 3) in respect of their deposition that the defendant Bhanwar Lal obtained oral consent of the plaintiff Shanker Lal before purchase of suit property. Division Bench of Calcutta High Court in A. E. G. vs. A. Y. Derderian (supra) observed that "wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believed that the testimony given could not be disputed at all. This is not merely a technical rule of evidence. It is a rule of essential justice. " ;