G. M. LODHA, J. - (1.) THIS is a civil second appeal under Sec. 100 C. P. C directing against the judgment & decree passed by the District Judge, Jaipur District, confirming the judgment and decree passed by the Civil & Asstt. Sessions Judge Jaipur.
(2.) THE appellant before this court is the plaintiff who, has got a house in Chowkri Purani Basti, Jaipur, adjacent to the disputed house. Both the disputed house and the plaintiff's house are parts of the same 'haveli'. THE disputed house was originally owned by the defendant No. 2 M. M. Tewari. Two chowks, "pole",; staircase and latrine in the Haveli' are in the joint ownership of the plaintiff, the defendants and other residents of the Haveli. On 12th June, 1962, the defendant No. 2 executed a sale deed of the house in dispute for Rs. 6700/- in favour of the defendant No. 1 Smt. Sarjoo Devi. The plaintiff being a co-sharer asserted the right of pre-emption. The plaintiff's case is that there is custom of pre-emption in the State of Jaipur and the defendant No. 2 could not have sold the disputed property to any one except the plaintiff and she was willing to purchase the suit property. The suit was filed for pre emption. The trial court held that the making of Talabs was necessary but no 'talabs' were made in the present case. It further held that the plaintiff waived her right. Ultimately, the suit was dismissed. The first appellate court confirmed the finding that, the plaintiff waived her rights of pre-emption and she is deprived from raising the suit. Before this court, Shri B. P. Agrawal, the learned counsel for the appellant, submitted that no offer of the purchase of the property in dispute was made to the plaintiff before or after the sale in question. This should have been done after concluding the agreement to sell between the seller and the purchaser. It was argued that the custom is co-extensive with Mohammadan Law, and the surrender of right of pre-emption can only be made after the sale. A reference was made to the judgment of this court in Bhatt Nandlal vs. Nagarmal & Gopal bux (Civil Appellate Jurisdiction No. 16 of 1949 DB decided on 24th July, 1951, unreported ). It was asserted that even if the plaintiff refused to purchase, there is no waiver, and the right of pre-emption is not lost as it was before the sale. Reference was made to Mulla's Principles of Mohammadan Law, Art. 242 and 243 at P. 278.
(3.) REFERENCE was also made to the decision of this court in Sobhraj Mal vs. Mst. Kamla (1 ). Shri Agrawal also relied upon the decision of the Apex Court in Ram Saran Lal vs. Mst. Domini Kuer (2) wherein, it has been held that the right of pre-emption arises only after the sale deed is executed. On the post of waiver, Shri Agrawal referred to the decision in Associated Hotels of India Ltd. vs. S. B. Sardar Ranjeet Singh (3) wherein it was held that there can be no waiver against a person against whom, the waiver is pleaded; had full knowledge of his rights. ;