N. C. SHARMA, J. - (1.) THE plaintiff Nand Kishore has failed in both the courts below in obtaining a decree for pre-emption with respect to house properties mentioned in paras 3 and 4 of the plaint. Facts which are not in dispute between the parties may first be stated. By a registered sale deed dated December 24,1970, the plaintiff purchased a 'guwari' situated in Sadar Bazar (Bheru chowki) in Chittorgarh from Sukka, Phool Chand and Bhanwar Lal respondents of village Ghosunda, tehsil Chittorgarh for a consideration of Rs. 5000. THE northern wall of this property was a joint or common wall of the vendors of the plaintiff and that of Mohan Lal Mochi. Smt. Indira Bai defendant purchased from Mohan Lal the property detailed and described in para 3 of the plaint for a consideration of Rs. 3000/- under a registered sale deed dated January 22,1972. On the same day the defendant further purchased another property detailed and described in para 4 of the plaint from Jaskaran for a consideration of Rs. 2000/-under a registered sale deed dated January 21, 1972. THE plaintiff Nand Kishore instituted Civil Original suit No. 12 of i973 in the court of Munsif, Chittorgarh on June 15, 1973 for pre-emption in relation to the aforesaid two properties which had been purchased by the defendant from Mohan Lal Mochi and Jaskaran. THE right of pre-emption was claimed on the following grounds, namely:- (1) That the northern wall of the property purchased by the plaintiff from Sukhaji, Phool Chand and Bhanwar Lal was common between the plaintiff and Mohan Lal Mochi, vendor of the defendant. Apart from that, the passage chowk and pole was joint alongwith plaintiff. (2) Similarly the passage, chowk and pole of the property purchased by the plaintiff was common with Jaskaran from whom the defendant had purchased the property mentioned in para 4 of the plaint. (3) THE rain water falling on the property purchased by the defendant also flowed through the joint chowk and the domestic water also flowed through the common chowk. (4) All the properties are situated in the same Gwari of Kishanaji Mochi which has a gate towards the south. THE plaintiff reaches to his property through this chowk and the means of access to the properties purchased by the defendant is also through the chowk. (5) No notice had been served by Mohanlal and Jaskaran to the plaintiff under Section 8 of the Rajasthan Pre-emption Act, 1966. Since the plaintiff had preferential right of purchase, he served a notice upon the defendant on July 9, 1972, but the properties were not transferred to the plaintiff.
(2.) DEFENDANT Indira Bai disputed the pre-emption right of the plaintiff on the ground that although, there was a wall between the property purchased by the plaintiff and the property which had been purchased by the defendant from Mohan Lal. However, half the width of the wall was of Mohan Lal and other half of the plaintiff. It was denied that the chowk and pole were joint. The plaintiff had only a right of passage. Flowing of water through the chowk was also denied. It was stated that there was no chowk of the plaintiff. It was also said that previously Jaskaran and Mohan Lal Mochi used to come to their property and now the defendant comes to her property which does not cause any inconvenience to the plaintiff. According to the defendant, it was not necessary to serve a notice under Section 8 of the Rajasthan Pre-emption Act, 1966. Lastly it was pleaded by the defendant that after purchasing the property, she had constructed a double storey godown and some rooms in the second storey and has spent an amount of about Rs. 21,500/- in making these constructions. Constructions were started on February 3, 1972 and were completed at the end of June, 1972. The plaintiff had at no stage taken steps to prevent the defendant from making these new constructions and never expressed his intention to claim pre-emption. The defendant had raised the second storey upon her share of the wall. Since the defendant had raised a new construction to the knowledge of the plaintiff and he did not object it at any time against raising of these construction and only gave notice after the defendant had completed constructions. It amounted to acquiescence on the part of the plaintiff and his right of pre-emption has extinguished. The present value of the property was about Rs. 350c0/ -. Pleas regarding waiver and estoppel were also raised. The suit was decided by Munsif, Chittorgarh on August 4, 1975. The Munsif held that it was proved that the wall in question was common between Sukkha (vendor of the plaintiff) and Mohan Lal (vendor of the defendant) and right in interest of vendor Mohan Lal had been purchased by the defendant. As regards the chowk, the Munsif held that strictly speaking if a way leads to two houses and is being used by both, it is not a right common to both the parties within the meaning of Sub-section (2) of Sec. 6 of the Pre-emption Act. it was held that the defendant has proved that she had spent a considerable amount in constructing a new house after purchasing the properties from Mohan Lal Mochi and Jaskaran. The plaintiff allowed the defendant to raise these constructions in his presence and to his knowledge leaving an impression in the mind of the defendant that the plaintiff did not want to exercise any right of pre-emption. It was, therefore, held that the provisions contained in Section 115 of the Evidence Act were attracted and plaintiff cannot be allowed to claim pre-emption. In view of these findings, Munsif, Chittorgarh dismissed the suit of the plaintiff on August, 4, 1975. Aggrieved by the dismissal of his suit, the plaintiff filed Civil First Appeal No. 80 of 1975 before the District Judge, Pratapgarh which was dismissed by the District Judge, on August 10,1976. The District Judge agreed with the findings of the trial court that the wall in between the house which has been purchased by the plaintiff from Sukhaji and others and that purchased by the defendant from Mohan Lal was common wall and the provisions contained in clause (i) of Sub-section 1 of Section 6 of the Rajasthan Pre-emption Act were attracted. The District Judge disagreed with the findings of the trial court with regard to the jointness of chowk and right of passage through the chowk. He held that the chowk was joint of the respondents in the guari and it is borne out even from the statement of Chiman Das, husband of the defendant that entrance and other amenities were common. Thus the District Judge, Pratapgarh (camp Chittorgarh) decided issue Mo. 1, which related to the grounds of preemption on which the right was claimed by the plaintiff, in favour of the plaintiff. Dealing with issues Nos. 2 and 3, the learned District Judge held that acquiescence or plea regarding waiver of the right to pre-empt would not be available to the defendant in the absence of service of notice under Section 8 of the Rajasthan Pre-emption Act, 1966 by him to the plaintiff. The District Judge, however, proceeded to examine the question whether doctrine of estoppel will bar the plaintiff from filing the suit for pre-emption. While examining this question, the learned District Judge stated that firstly that the right of preemption is a weak right and it should be strictly enforced. Secondly, courts have refused to grant decree for pre-emption by applying the doctrine of estoppel as against the pre-emptor. Having regard to the fact that the defendant had constructed new house by spending about Rs. 22. 000/-and the constructions had proceeded for five or six months and the plaintiff did not raise any objections against the constructions which were being made by the defendant, it was sort of the representation by the plaintiff that he does not want to exercise the right of pre-emption. It was consequently held that the plaintiff was estopped from claiming the right of pre-emption. Accordingly the District Judge dismissed the appeal filed by the plaintiff. The plaintiff has come to this Court in second appeal. Mr. M. C. Bhandari appearing for the appellant-plaintiff contended that the doctrine of estoppel has no application as against the pre-emptor claiming his rights of pre-emption under the Rajasthan Pre-emption Act, 1966. It was urged that it was mandatory for the vendor of the defendant to give statutory notice to the plaintiff under Section 8 of the Act. Apart from that, the plaintiff Naval Kishore was minor when the properties had been purchased by the defendant and soon after attaining the majority, he served a notice upon the defendant and filed the suit. It was also urged that there was over-whelming evidence of the plaintiff on the record that before July 9, 1972 the defendant had not made any constructions and that she started constructions only after the plaintiff had served a notice upon her. It could not, therefore, be held that the plaintiff allowed the defendant to raise the construction without any objections. Thus according to the learned counsel, courts below, after recognizing the rights of plaintiff to pre-empt, were wrong in dismissing his suit by applying the doctrine of the estoppel as against the plaintiff.
(3.) MR. Suresh Shrimali appearing for MR. D. S. Shishodia, learned counsel for the defendant-respondent supported the reasonings given by the courts below in dismissing the suit of the plaint. I have given due consideration to the rival contentions of the learned counsel for the parties. Both the courts below have concurrently found that the wall in the question was common between Sukkha (vendor of the plaintiff) and Mohan Lal (vendor of the defendant ). The rights and interest of Sukha and Mohan Lal in the property bad been purchased respectively by the plaintiff and the defendant. The learned District Judge has also held that chowk was also joint. The only ground on which the pre-emption right, was refused to the plaintiff was that since the defendant had reconstructed the house purchased by him and the plaintiff did not raise any objection against the reconstruction while they were being made by the defendant, it was an estoppel by conduct as against the plaintiff that he will not claim right of pre-emption. It was on this ground alone that the District Judge dismissed the appeal filed by the plaintiff. It is clear from the provisions contained in Section 6 (1) (i) and (ii) of the Rajasthan Pre-emption Act, 1966 (for short, hereinafter, "the Act") that subject to the other provisions of the Act, the right of pre-emption in respect of any immovable property transferred shall accrue to and vest in : - (i) co-sharers of or partners in the property transferred; and (ii) owners of other immovable property with a stair case or an entrance or other right or amenity common to such other property and the property transferred. In other words, what are classified in Mohammedan Law as shafi-i-sharik and shafi-i-khalit are recognised as grounds of pre-emption in the above provisions of the Act. Section 8 of the Act clearly provides that when any person proposes to sell, any immovable property, in respect of which any person have a right of preemption, he shall give notice to all such persons as to the price at which he is proposing so to sell. Such notice is required to be given through the civil court within the local limits of whose jurisdiction the property concerned is situated shall clearly describe such property, shall state the name and other particulars of the purchaser and shall be served in the manner prescribed for service of summons in civil suits. It is clear that in case of sale, the notice has to be given by the seller of the immovable property and it has to be given through the civil court. The right of pre-emption in respect of any immovable property to be sold is lost, if within two months from the date of the service of notice fails to pay or tender the price specified in the notice to the persons proposing to sell. In the instant case, admittedly no notice u/s 8 was given to the plaintiff by the vendors of the defendant before selling the properties described in paras 3 and 4 of the plaint to the defendant. Section 11 of the Act mentions the grounds on which a suit to enforce the right of pre-emption can be brought and the grounds specified in clause (a) of Sub-section 1 of Section 11 is that no due notice was given or served as required by Section 8 by the vendors of the defendant. ;