Arun Madan, J.
1. The appellant-plaintiff has preferred this first appeal against the judgment and decree dated 27-5-97 passed by the learned Additional District Judge No. 8, Jaipur City. whereby the learned trial Judge dismissed the plaintiff s suit for pre-emption with costs.
2. The salient facts of the case are, that the plaintiff had filed a civil suit for pre-emption claiming herself as co-sharer of the suit property. It has been averred in the plaint inter alia that Hanuman Prasad respondent No. 1 who had sold the suit property at a consideration of Rupees 35,000/- to Smt. Asha Devi. respondent No. 2, had no right of sale vested in him in view of the fact that the offer regarding sale of the suit property though made to the appellant at the first instance at a lesser consideration of Rupees 20,000/-, yet without giving sufficient time to her, he had sold the suit properly to the respondent No. 2 notwithstanding preferential right of the plaintiff for purchase of the same at a lesser consideration as origin
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ally agreed to between the parties.
3. This claim of the plaintiff was vehemently denied by the respondents on the averments intern alia that though the offer for gale of the suit property was made initially by the respondent No. 1 to the plaintiff in the year 1984 at a consideration of Rs. 20,000/- but since the plaintiff did not have enough funds and she did not confirm by accepting the offer made by the respondent, No. 1, nor the acceptance was communicated, the respondent No. I had a full lawful right vested in him as the true owner to sell the suit properly to the respondent No. 2, who had admittedly offered the sale consideration higher than the plaintiff's offer. Therefore, the offer for sale consideration of Rs. 35,000/- having been made and accepted by the respondent No. 2. the respondent No. 1 consequently got executed the sale deed of the suit property before the Sub-Registrar, passing thereby valid and lawful title to the respondent No. 2. It was further contended that in any event the right of sale vested with a lawful, owner of property could neither be curtailed or scuttled in a manner as it was sought to be done, by the plaintiff since it was not his case that he had made payment of consideration either while or in part so as to bind the seller i.e. respondent No. 1 towards him by virtue of any agreement of sale and which was not his case.
4. On the basis of the pleadings of the parties, the learned trial Court framed as many as seven issues. Out of these seven issues, the onus to prove issue Nos. 1 to 4 was upon the plaintiff while for issue Nos. 5 and 6. it was upon the defendant. Seventh issue related to relief clause. After examining other witnesses, the plaintiff herself appeared in the witness box and examined herself as PW-1 while the defendants examined DW-1 Ramgopal in support of their claims. After hearing both the parties and due appreciation of the evidence on record, the learned trial Court while deciding issue Nos. 1 to 4 against the plaintiff and issue Nos. 5 and 6 against the defendant dismissed the plaintiffs suit, by holding that the plaintiff has extinguished her right of pre-emption and consequently, the right of pre-emption does not accrue to her because the plaintiff herself admitted in her cross-examination that she did not make an offer to Hanuman Prasad (respondent No. 1) for the purchase of the suit property before its sale to the respondent No. 2, and further admitted that the offer for sale consideration of Rs. 35,000/-was made to her but she was not ready or willing to accept the sale consideration at the quoted price. Hence in absence of acceptance of offer by the buyer in favour of the seller no lawful contract could emerge between the parties nor wrong lawful contract could be assumed between them. Consequently there was no embargo on the seller (respondent No. 1) for its sale to the bona tide purchaser for consideration (respondent No. 2). Hence this first appeal.
5. I have heard the learned counsel for the appellant, and also perused the impugned judgment of the trial Court.
6. The learned counsel for the appellant contended that white deciding issue No. 1, the learned trial Court did not take into consideration the provisions of Rajasthan Pre-emption Act, 1966, particularly Section 8 thereof, which contemplates as under :---
"8. Notice to preemptor.-- (1) When any person proposes to sell, or to foreclose the right to redeem, any immovable property, in respect of which any persons have a right of pre-emption, he shall give notice to all such persons as to the price at which he is proposing so to sell or as to the amount due in respect of the mortgage proposed to he foreclosed, as the case may be.
(2) Such notice shall 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 or the mortgagee and shall be served in the manner prescribed for service of summons in civil suits."
7. Next contention on behalf of the appellant is that while deciding the issues framed on pleadings of the parties, the learned trial Court has grossly erred in not taking into consideration that in defence none of the defendants had appeared before it to state that the respondent No. 1 had made first offer to the plaintiff for sale of the suit property, which goes to show that the averments made in defence are devoid of merit.
8. It has also been urged by the learned counsel for the appellant that the learned trial Court has grossly erred in placing reliance upon the evidence of DW-1 Ramgopal with regard to acquiescence and estoppel of the plaintiff. Lastly it has been contended that the plaintiffs testimony remained unimpeached.
9. I have given my thoughtful consideration to the aforesaid contents of the appellant's counsel with reference to the pleadings as well as the findings recorded by Ihe learned trial Court in the impugned order. Having considered the contention of the learned counsel for the appellant as well as the contentions urged on behalf of the respondents before the learned trial Court, I am prima facie of the view that the contentions urged on behalf of the appellant have got no substance and merit and, therefore, are not sustainable in law. As regards first contention as to the service of the notice to the pre-emptor prior to the sale as per Section 8 of the Act, 1966, I am of the view that provisions contained in Section 8 of the Act are not attracted to the present case since the plaintiff had in her deposition before the learned trial Court clearly admitled during cross-examination that the offer regarding sate of the suit property was made to her by the defendant No. 1 but she was not ready to purchase the same at a consideration of Rs.35,000/-.Thus, in view of the clear and unequivocal admission on the part of the plaintiff in her cross-examination, in my considered view, the learned trial Court was absolutely justified in arriving at the conclusion on issue Nos. 2 to 4 that she had obviously surrendered her right of pre-emption in favour of the defendant No. 2, who was bona fide purchaser at a sale consideration of Rs. 35,000/- for the suit property and, who consequently could not be pre-empted from purchasing the suit property. Such findings arrived at by the learned trial Court, in my view, being based on due appreciation of evidence, do not warrant any interference by exercise of jurisdiction u/s 96 of the Code of Civil Procedure, and deserve to be upheld.
10. Further, in view of the offer having been made to the plaintiff by defendant No. 1 prior to sale of the suit property to the defendant No. 2, which was not admittedly accepted by the plaintiff as she was having no sufficient funds as on the date when the first offer was made, the right of the vendor to make subsequent offer to defendant NO. 2 could not be curtailed or scuttled in any manner since the right of pre-emption of the plaintiff to pre-empt the sale in favour of the defendant No. 2 stood automatically extinguished since she had neither shown her readiness nor communicated her willingness to the latter regarding purchase of property in question and as regards the acceptance to the first offer of the sale of the suit property made to the plaintiff. I am of the considered view that in order to support the plea of waiver, it is incumbent upon the vendor and vendee to establish that they had concluded the agreement to sale in a lawful manner and that the plaintiff was approached and asked to purchase the property for sale consideration, for which the vendor was ready and willing to purchase the suit property by having sufficient funds at his/her disposal in the Bank account and positive evidence must be led on record. It is not the case of the appellant that as a result of the offer made to her, she had either accepted the same on the basis of the agreement to sale reduced in writing by paying either earnest money or part of sale consideration, by virtue of which it could be inferred that the appellant had a clear indefeasible and lawful right of purchase of the suit property. Hence in the absence of any reliable evidence to that effect, I am of the view that on the basis of the sale deed, which was lawfully executed between the defendant Nos. 1 and 2. a valid contract had attained its finality and which is not open to challenge in this appeal. I am fortified by decision of the Apex Court in Indira Bai Vs. Nand Kishore, wherein the Apex Court held as under (at page 1058) :
"Failure to serve notice as required under the Act does not render the sale made by vendor in favour of vendee ultra vires."
"The act does not provide that in case no notice is given the transaction shall be void. The objective is to intimate the pre-emptor who may (be) interested in getting himself substituted. The Act does not debar the pre-emptor from giving up this right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished."
11, As a result of the above discussion, this appeal fails and, is hereby dismissed in limine. The impugned judgment and decree dated 27-5-97 passed by the learned Additional District Judge No. 8, Jaipur City are upheld being not open to challenge.