ORDER
1. The plaintiff seeking right of prior purchase of land measuring 5 kanals and 6 marlas situate at Zoonimar against the defendants/respondents, has appealed against the judgment and decree dated 29-3-1985 of 2nd Addl. District Judge Sri-nagar reversing the decree passed by City Judge, Srinagar vide his judgment dated 30-6-1975.
2. The appellant claims the right of prior purchase regarding the suit land on the basis of being co-sharer and tenant of the land in question. He filed a suit before the City Judge Srinagar and obtained a decree dated 30-6-1975 against the respondents who appealed against the same and Second Addl. District Judge, Srinagar reversed the finding of the trial Court on issue No. 2 which for purpose of reference is quoted hereunder :–
“If issue No. 1 is answered in affirmative then whether the plaintiffs have by their deeds and actions waived their right to prior purchase.” OPD While reversing the finding of the trial Court on issue No. 2 holding the plaintiff having waived the preferential right of prior purchase, thus, extinguishing his right to claim the decree, therefore, dismissal of the suit due to finding on the issue quoted keeping intact the finding on other issues including the preferential right of prior purchase of the plaintiff otherwise in tact, except having waived the same, further held that in the absence of any legal provision regarding method of serving notice to the person having preferential right of prior purchase, therefore, reversal of the finding on the point.
3. Respondents were summoned who failed to appear despite notice through publication for 21-10-1988, therefore, ex parte proceedings against the respondents vide this Court order 3-11-1988 were taken.
4. In the circumstances the appeal was heard ex parte in the absence of the respondents.
5. I have heard learned counsel for the appellant.
6. Mr. Goja argued that the learned lower appellate Court has erred in recording the finding on issue No. 2 that no specific provision of law being in existence for notice by the vendor to the person having preferential right of prior purchase indicating the ignorance of law by lower appellate Court on the point, therefore, relying on the oral evidence full of discrepancies regarding oral notice to the plaintiff by the vendor reversing the finding on issue No. 2 illegally, and defeating the right of the plaintiff on account of the waiver not in accordance with the provisions contained in prior purchase Act.
7. To appreciate the argument of learned counsel for the the appellant on the point of waiver to extinguish the right of a person claiming preferential right of prior purchase the respondents have to establish that the plaintiff having preferential right of prior purchase has presented a notice to the Court within 3 months from the date the vendor has served notice on such person in accordance with Section 18 of the Right of Purchase Act or within one year from that date to indicate his readiness to exercise such right on the price of the property quoted in the notice by the vendor or such other price which he is prepared to pay for the property and after this formality being observed the plaintiff can institute a suit failing which his right for preferential right of prior purchase gets extinguished. The requirement for waiver is provided under Section 19 of the Act, which is reproduced hereunder :–
Section 19. “Notice by a person claiming right of prior purchase to vendor. The prior right of any person shall be extinguished unless such person shall, within the period of three months from the date on which notice Under Section 18 is duly given and served, or within such further period not exceeding one year from such date, as the Court may allow, present to the Court a notice for service on the vendor or mortgagee of his intention to enforce his right of prior purchase. Such notice shall state whether the person intending to exercise the right accepts the price or amount due on the footing of the mortgage as correct or not, and if not, what sum he is willing to pay.
When the Court is satisfied that the said notice has been duly served on the vendor or mortgagee the proceedings shall be filed.”
8. Thus on a perusal of Section 19 of the Act, the extinguishment of the right of prior purchase is subject to notice by vendor to the person having preferential right of prior purchase in the property in accordance with Section 18 of the Act which too is reproduced hereunder :-
Section 18. “Notice to persons having right of prior purchase :– When any person proposes to sell any agricultural land or village immovable property, or urban immovable property or to foreclose the right to redeem any village immovable property, or urban immovable property, in respect of which any persons have a right of prior purchase, he may give notice to all such persons of the price at which he proposes to sell such land or property, or of the amount due in respect of the mortgage, as the case as may be.
Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property is situate and shall be deemed sufficiently given if it is served in accordance with the provisions of Order V of the Code of Civil Procedure.”
9. The provision requires the person i.e. seller in otherwords vendor intending to sell the property in respect of which any person has preferential right of prior purchase to serve a notice on such person at which price he intends to sell or amount for the foreclosure of property through Court of local jurisdiction where the land is situated. The notice will be treated only sufficient if it is served in accordance with Order 5, CPC. Therefore, before pleading the extinguishment of right of prior purchase of the claimant of such right, the vendor has to establish service of notice regarding the proposed sale of the property, price at which he intends to sell or the amount of foreclosure of the property. Such notice has to be served in accordance with Order 5, CPC. The mode and method of service provided it may be by registered post (with acknowledgment due), service in person, it can be on agent who carries on business for the person or can be even on elder member of the family. These methods have to be observed if the service of notice is pleaded, not otherwise. In this case no notice appears in accordance with law having been served eliminating the requirement of law. What the defendants in their oral evidence have tried to establish is the knowledge of the sale by the plaintiff, short of service of any notice. Once the provision of law on a point is express, clear, such provision has to be complied with and the oral evidence if led it will be only to prove what is required under law. The oral evidence led can be relied in a civil matter only if it does not let down or shadow the law. Once law requires to do a thing in a particular manner, that cannot be substituted by oral evidence of whatever strength it may be. To extinguish the right of prior purchase of a person, the law requires that he be noticed regarding such sale or foreclosure of property particularly intimated of the price of such property or amount of price for foreclosure of property. The requirement of the law in such notice must be written and it has to be served on such person through Court, by registered A/D post, personal service, on recognised agent or elder member of the family whatever is practicable though preference is to be given notice by personal service. Mere knowledge of sale by the person claiming preferential right of prior purchase of property is not enough. The law requires that price has to be notified. Even in the absence of intimating by notice of the property, non-service of notice will not be compliance of Section 18. Thus, the oral evidence of whatever volume regarding knowledge of the sale by a person claiming preferential right to prior purchase that too short of knowledge of price will not bind the claimant and such finding, if recorded, same will be contrary to law, as has happened in this case at the hands of the learned 2nd Addl. District Judge, Srinagar, having ignored the provision of law regarding notice under the Act of which he appears not aware as observed by him resulting reversal of the decree for preferential right of prior purchase in favour of the plaintiff passed by learned trial Court (City Judge Srinagar).
10. Because of the oral evidence led by the parties on the point of notice resulting in dismissal of the plaintiffs suit by the lower appellate court, it gives rise to the question of estoppel as provided Under Section 115 of the Evidence Act, which reads as under :–
“Section 115. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”
11. The respondents have led evidence regarding knowledge of sale to the plaintiffs as per their offer to sell the land to them, who according to them, rejected the offer, therefore, get precluded to plead the ignorance on the point of notice. The provision of estoppel quoted above will apply in respect of oral exchange between the parties to the suit which facts if established, the party having allowed another i.e. defendants to act upon that oral exchange, will not be permitted to plead contrary to facts expressed by him to prompt another to do a certain act which he was not entitled to except with consent of the former.
12. As has been observed that in accordance with Section 18 of the Act quoted, the vendor has to serve the notice on the person having preferential right of prior purchase upheld in this case by both the courts and such notice must quote the price of such property proposed to be sold which is mandatory and such notice has to be served in accordance with Order 5, CPC, as discussed above. It is not the case of the respondents even in the oral evidence that while orally approaching the appellants to purchase the property sought to be pre-empted even if believed does nowhere indicate that the price was quoted to the plaintiffs/appellant, therefore, a legal lacuna left in the oral evidence too, which defects the oral evidence of respondents legally on the point and cannot be acted upon to attract the provisions of estoppel Under Section 115 of the Evidence Act for the requirement indicated. Further the courts have to follow and see compliance of law. While adjudicating on a legal provision as in this case regarding waiver by the plaintiff in accordance with Section 19 of the Right of Prior Purchase Act, the legal provision has to be given the priority and the oral expressions have to be given weight when in conformity with the requirement of law. Therefore, requirement of law cannot be kept subordinate to the oral evidence even in civil proceedings like the one in hand, oral evidence even in civil proceedings like the one in hand, oral evidence led and acted upon by the learned and Addl. District Judge, Srinagar, throwing the legal requirement to winds rather making the provisions of Sections 18 and 19 of the Act, regarding notice ineffective. Thus, even the principle of estoppel Under Section 115 of the Evidence Act on the basis of oral evidence do not attract in this case for purpose of notice to the persons (plaintiffs) seeking preferential right of prior purchase, required to be given by seller to person, as provided Under Section 18.
13. For the observations made above, the judgment and decree of reversal passed by 2nd Addl. District Judge, Srinagar dated 29-3-1985 appealed in this civil second appeal, is not legally sound and needs to be set aside.
14. I, therefore, allow this appeal, set aside the judgment and decree dated 29-3-1985 of Second Addl. District Judge, Srinagar reversing the decree of the trial court (City Judge) Srinagar dated 30-6-1975 which is upheld.
15. The appeal is accordingly allowed and disposed of, however, without any order as to costs.