KHALO KHAN And Others vs Sh. ABDUL RAHIM
This matter originated as a suit for possession through pre-emption filed by the respondent against the petitioners, who had purchased land via a registered agreement to sell. The petitioners contended that the respondent had waived his right of pre-emption by demanding and accepting a mortgage payment of Rs. 2,000 from them prior to the sale, arguing that this conduct, along with the delivery of possession, estopped the respondent from asserting a pre-emption claim. The trial court dismissed the suit, but the Additional District Judge reversed this decision, and the High Court maintained that reversal. The core legal question was whether the respondent's acceptance of the mortgage money and his conduct constituted a waiver or estoppel regarding his right of pre-emption. The Supreme Court dismissed the petition, holding that the petitioners failed to produce cogent evidence of acquiescence. The Court affirmed the principle that the mere receipt of mortgage money by a pre-emptor after a sale does not necessarily constitute a waiver of the right of pre-emption, as such acts do not inherently demonstrate an intention to abandon that statutory right.
- Does the acceptance of mortgage money by a potential pre-emptor after a sale constitute a waiver of the right of pre-emption?
- Can a pre-emptor be estopped from filing a suit for pre-emption based on their conduct regarding the mortgage of the suit property?
ORDER
MIAN BUNHANUDDIN KHAN, J.--Petitioners Nos.3 to 17 entered into an agreement to sell land measuring 8 Kanals and 7 Marlas to respondents Nos.1 and 2. The said agreement was registered on 3-9-1965. On 11-11-1965 the respondent issued a notice to Dr. Abdul Karim Khan father of petitioners Nos.3 and 4 saying that the land is subject-matter of a charge of Rs.2,000 as mortgage money and if the petitioners (purchasers) wanted to purchase the land then they would do so after having paid Rs.2,000 to the respondent and for obtaining the possession. The petitioners allegedly paid the amount of Rs.2,000 and the respondent returned the mortgage deed Exh.D/3 to D/22.
Thereafter the agreement to sell was concluded on 3-12-1965 by way of mutation and balance amount was paid on the said date according to evidence.
2. The respondent filed suit for possession through pre-emption on the basis of being joint Khatedar alongwith other grounds, on 15-3-1966. The suit was contested. The learned trial Judge dismissed the suit of the respondent with costs. Appeal filed was accepted by the learned Additional District Judge per order, dated 10-11-1975. Thereafter revision petition was filed in the High Court which was dismissed with no order as to costs, vide the impugned order, dated 27-2- 1985.
3. It was contended that as the respondent had demanded Rs.2,00a as mortgage amount on the said land before delivering its possession to the petitioners, he had waived the right of possession by pre-emption by his conduct and respondent was estopped from filing suit for pre-emption; that in the circumstances of the case it is clear that respondent had no intention to pre-emption either before or after the execution of the sale-deed; that another overt act of the respondent in the form of mortgage deed Exh.D/3 and returning deeds Exhs.D/3 to D/22, established waiver and is further strengthened by the fact that they delivered the suit property to the petitioners without reserving any right or making any claim.
4. We have examined the contentions raised by the learned counsel. We agree with the observation of the learned High Court made in the impugned judgment, as follows:- "The appellants had failed to produce any cogent evidence to show acquiescence on the part of the respondent No.1. The fact that the mortgage amount was received by the respondent No.1 after the sale would also show that he had not waived his right of pre-emption. In support of the latter circumstance reference may be made to the cases of Imam Din v. Jalal and another AIR 1922 Lah.
42 and Gangs, Singh and another v. Jhandasingh and another A I. P. 1948 Lah. 5."
Thus, we find this petition to be without merit same is, accordingly, dismissed.