JUDGMENT 1. THIS rule under section 115 of the code of Civil Procedure (5 of 1908) is at the instance of Asit Ranjan Datta whose application for pre-emption under section 24 of the West Bengal non-Agricultural Tenancy Act, 20 of 1949, as amended by Act 24 of 1953. succeeds in the court of first instance, but falls in the court of appeal below. 2. ON August 31, 1962, Chittaranjsn ghosh alias Jiban Krishna Ghosh, a co-sharer in each of the two non-agricultural tenancies, sold parts thereof to tarakeshvar Sarkar. The parts so sold are, as evidenced by the relative sale deed : A. Plot No. 600 admeasuring. 09 acre under khatian No. 920 of mouza palasi. B. Plot No. 600 admeasuring . 09 acre under khatian No. 921 of the same mouza. These two khatians record what is called in settlement diction a samil khajana of a total sum of Rs. 99-2 as.-7 pies, linked with another khatian : khatian No. 178; at the same time each khatian has a distinct jama or khajna (rent) of its own: Rs. 3-6-6 pies. Naturally, therefore, plot No. 600, as it now stands, after bata plots have been carved out of it, with a total area of. 18 acre, appears in both the khatians, but in a hishya (settlement phraseology again) of 8 annas each, showing necessarily a moiety area (.09 acre) in each too. 3. SUCH are the two hishyas of. 09 acre each of plot No. 600, Chittaranjan said, and Tarakeswar purchased: one for Rs. 226 and another for Rs. 225. And such is the sale dated August 31, 1962, on the basis of which Asit Ranjan, a co sharer, moves the court for pre-emption, with the result already noticed : success in the court of first instance and reversal of that success in the court of appeal below. 4. BEFORE such sale on August 31, 1962, the vendor Chittaranjan alias jiban and the petitioner Asit Ranjan had had some discussion about it, as is apparent from the letter dated August 3, 1962, exhibit D, written by Asit ranjan to the address of Jiban, and as is the admission too of Asit Ranjan on cross-examination : "it is a fact that there was some talk between me end opposite party No. 2 (Jiban) on the proposed sale of transferred land to me. And this is so natural too for two reasons, which emerge from the unchallenged evidence of Asit Ranjan. One, Asit Rrnjan's homestead is contiguous to the land in controversy here. Two, Chittaranian alias Jiban is the husband of Asit Ranjan's presumably younger sister. Presumably younger sister, because Asit Ranjan, in the letter just referred to, addresses Jiban rs "kalyania Jiban, a form of address resorted to by the elder to the younger. But he concludes such letter with ''praratah", a form, which shows the opposite: Asit Ranjan being the younger. It does not matter which. That jiban is Asit Ranjan's sister's husband is enough. The letter dated August 3, 1962, needs looking into a little closely. Because it has given rise to divergence of indicial opinion, the judge in the court of first instance holding that neither waiver nor estoppel can be spelt out of it, and the judge in the court of appeal below holding lust the opposite. The later, in so far as it is material here, makes the following points to Jiban. A. Why sell ? What, indeed, is the necessity to sell? It is good that you db not go in for a sale. B. If you continue staying where you are, it will perhaps be definitely a little good from our standpoint. C. So, can you avoid selling the land, pray retain it. But if you have made up your mini to sell it, then the price, on the foot of what you have expended, is beyond my capacity to pay. At the same time, u you sell at the prevailing market rate, I can buy. D. On the basis of what you have expended so far, the price comes, on calculation to Rs. 1,000 a bigha. But the present market value works to Rs. 500 or 550 a bigha. E. Now, everything depends on what you think fit. Could I have, taken it, it would have perhaps assisted my convenience. F. Be the position as it may, I shall pass on the detail (to you) through swaraj. 5. SUCH then is the translation of the letter dated August 3, 1962, written by Asit Ranjan, the pre-emptor, the petitioner before me, to the vendor chitta Ranjan alias Jiban. The price at which plot No. 600, with an area of 18 acre, was sold to Tarakeswar, twenty-eight days after the letter, is Rs. 226 plus Rs. 5. SUCH then is the translation of the letter dated August 3, 1962, written by Asit Ranjan, the pre-emptor, the petitioner before me, to the vendor chitta Ranjan alias Jiban. The price at which plot No. 600, with an area of 18 acre, was sold to Tarakeswar, twenty-eight days after the letter, is Rs. 226 plus Rs. 225, that is, Rs. 451, in all it works out to a little less than Rs. 827 a bigha. 6. IN the terms of a letter as this, the judge in the court of first instance does not find waiver; the appellate judge does. But waiver is the abandonment of a right, and is either express or implied from conduct : halsbury's Laws of England, 3rd edition), vol. 14, page 637, article 1175, which Mr. Das Gupta, appearing for the opposite party, refers me to. What (1)Dawson's Bank Ltd. v. Nippon Menkwa: kabushiki Kainha, (1,935) " 82 IA 100 : air 1935 PC 79, which Mrs. Bosa, appearing for the petitioner refers me to, lays down on waiver is more or less a rehash of what goes before : a contractual agreement to release or not to assert a right. But does the letter fit such concept ? Read as a whole and fairly, does it disclose the abandonment on the part of the writer, the petitioner Asst Ranjan, of his right of preemption ? To my thinking, it does not. It is no more than a pleading by a brother-in-law to a brother-in-law not to go in for the sale, to consider the price of Rs. 1,000 a high a being much too high for him, to reckon the inconvenience the writer will have to face if the sale takes place, etc., ultimately leaving the decision to Jiban, the addressee, arid saying that he shall pass on the detail through one Swaraj. What was passed on so is anybody's guess. So, abandonment of a right cannot be spelt out of the letter. Persuasion can be. And the last word remains unsaid. It will be said through Swaraj, as the letter puts it. What was passed on so is anybody's guess. So, abandonment of a right cannot be spelt out of the letter. Persuasion can be. And the last word remains unsaid. It will be said through Swaraj, as the letter puts it. By having seen on the foot of this letter, waiver, though there is none, the learned appellate judge has acted, in the exercise of his jurisdiction with illegality, that is, in breach of the law which permits the legal inference of waiver to be drawn on facts which do not simply exist here. 7. THIS is one consideration. There is still another. The right of pre-emption accrues so soon as the transfer takes place in accordance with law. An application for pre-emption is not the source of the right, but the means of enforcing it. Or, to put in another way, the application and the requisite deposits are conditions, not of the acquisition of the right, but of its enforcement. See the Full Bench decision of this Court in (2) Jatindra v. Jatu, (1946) 50 CWN 502, including the judgment of the referring judge, B. K. Mukherjea J. (as his Lordship then was), a case on pre-1. 938 26f of the Bengal tenancy Act, (3) Gobardhan v. Gunadhar, (1940) 44 CWN 802, and (4)Naresh v. Girish, (1935) 61 CLJ 360-a case under the Mohomedan Law of pre-emption. So, in the case on hand, the petitioner As't Ranjan's fight of pre-emption accrued on August 31, 1962, the date of sale by Jiban to tara-feeswar. And waiver there can be of a right accrued : (5) Keen v. Biscngf i (1878) 8 Ch. D 201. Hence, the letter of August 3, 1962, cannot give rise to waiver. 8. SUCH is Mrs. Bose's contention which Mr. Das Gupta answers in the manner following : A. The right exists antecedently to the sale. B. The right Mrs. Bose contends about is only the secondary or remedial right to follow the thing sold. But there is an earlier right, the primary or inherent right, to the offer of a thing about to be sold. C. So, waiver there can be of such a right as distinguished from the accrued right. B. The right Mrs. Bose contends about is only the secondary or remedial right to follow the thing sold. But there is an earlier right, the primary or inherent right, to the offer of a thing about to be sold. C. So, waiver there can be of such a right as distinguished from the accrued right. The contention marked A rests on (C) Audh Behari Singh v. Gajadhar jaipuria, AIR 1954 SC 417 , where the supreme Court upholds a custom of pre-emption on the ground of vicinage, and that too as required by muhamadan Law. "There Mukherjea, C. J. (then Mukherjea J.) says : "it is true that the right becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land the sale is a condition precedent not to the existence of the right but to its enforceability." naturally. Mr. Das Gupta relies upon it. A case is an authority for the proposition it decides, not for one even if it seems to follow logically from the proposition on decided. (6) Audh behuri's case does not decide anything like waiver. Again, the Mahomedan law of pre-emption lays down strict rules about demands-talab-i-mowasihat (demand of jumping, that is, immediate demand) and talab-i-ishhad (demand with invocation of witnesses), to ascertain which, indeed, the Supreme Court directed a remit. And the right of preempt on is not lost, even if the pre-emptor refused to accept the offer to buy before completion of the sale, the; reason being that "a valid and perfected sale is a condition precedent to the exercise of the pre-emptive right", to quote from the minority judgment of mahmood J. in (7) Janki v. Girjadaf, (1885) 1lr 7 Allahabad 482 (FB), since approved by the Supreme Court in (8) Radhakishun v. Shridhar, AIR 1960 SC 1368 . See, also Mulla's mahomedan Law, 14th edition, page 226, article 242. See, also Mulla's mahomedan Law, 14th edition, page 226, article 242. Now, if the right of preemption is not lost by refusal on the part Of the pre-emptor to buy before the completion of sale, in spite of the offer made to him to buy, sure enough, it cannot be lost by waiving his right" ''antecedently to the sale", let alone the point that no waiver is there in the letter of August 3, 1962. Indeed, that cannot but be so. In the very nature of things, this antecedent right is an inchoate light which must lie dormant, so long as a valid and perfected sale is not there right as that, without more, has no remedy either, on that simpliciter, no conceivable action in a court of law can possibly lie. Only when the sale is completed, the pre-emptor knows where he stands and what his essential right is : whether it is worth while to be substituted for the vendee, who, if a desirable type, may as well be left alone. That is the stage for waiver, not the antecedent stage when lie knows next to nothing about matters which it is essential for him to know. Not being fully informed of his position and rights, waiver, if any, can never be effectual. 9. THE contention marked B (Paragraph 11) rests on (9) Bisan singh v. Khazan Singh, AIR 1958 SC 838 , a case under the Punjab pre-emption Act, 1 of 1913, section 19 of which enables the vendor to notify the possible pre-emptors that he is about to sell his property at a certain price, and section 20 of which provides that their right of pre-emption shall be extinguished if they do not come forward to buy within the prescribed time. So, the primary right, the right to the offer of a thing about to be sold, is right here, but conspicuous by its absence in the West bengal Non-Agricultural Tenancy Act, 20 of 1949. In sum, the Punjab Act creates, by sections 19 and 20, a statutory waiver, so to say, our Act here doing nothing of the kind. 10. BY parity of reasoning, (10)Bhau Ram v. Baijnath, AIR 1962 SC 1476 , which strikes down, as an unreasonable restriction, pre-emption on the round of vicinage, provided for by status cannot help matters forward for the opposite party. 10. BY parity of reasoning, (10)Bhau Ram v. Baijnath, AIR 1962 SC 1476 , which strikes down, as an unreasonable restriction, pre-emption on the round of vicinage, provided for by status cannot help matters forward for the opposite party. One such statue is the Rewa Pre-emption Act 1946, sections 12 and 13 of which are akin to sections 19 and 20 of the Punjab Act just noticed. The other statute is the punjab Act itself. The precisions in both prescribing pre-emption on the both of vicinage are struck down the third one is the Berar Land revenue Code 1928 giving the right of pre-emption to co-occupants in survey numbers, each number generally containing 30 acres. Such co-occupants are really so akin to co-sharers. Hence, the right of pre-emption, on that footing rot on the footing of vicinage, survives. More, by section 174 of the Code, before an occupant could transfer his interest, he had to give notice of his interaction to all other occupants : (3)Radhakishan v. Shridhar (supra ). So, the primary right to the offer of a thing about to be sold is in all the three statues-the Rewa Act, the Punjab Act and the Berar Code -and is not in our and. That apart, for the point I am on now, the pre-emptive right " antecedently to the sale" cannot form the basis of an effectual waiver, because of the inherent character of such right itself-inchoate, dormant, and not blossoming into an enforceable right long as the sale is not completed, thereby keeping the possessor of the right, the possible pre-emptor, in the dark about all essential matters he must know and in absence of which an effective waiver is out of the question. Thus, the contentions A and B failing-and fail they must-the content on marked C fails too. The first judge's folding that there is no waiver stands; the appellate judge's finding to the primary does not, vitiated as it is by jurisdictional error-an error, in the exercise of his jurisdiction, in breach of the law on waiver: (11)Chaube Jagdish Prasad v. Gang a prasad, AIR 1939 SC 492. 11. ESTOPPEL is another topic on which the learned judges have differed the trial judge seeing nothing of the kind and the appellate judge coming to an exactly opposite conclusion. Estoppel is a rule of evidence. 11. ESTOPPEL is another topic on which the learned judges have differed the trial judge seeing nothing of the kind and the appellate judge coming to an exactly opposite conclusion. Estoppel is a rule of evidence. But there is no evidence that the vendee tarakesvar has changed his position on the basis of the letter dated August 3, 1962, as Mrs. Bose rightly contends, and as Mr. Das Cupta fairly concedes. 12. BUT, Mr. Das Gupta contends, the appellate judge, the last court of facts, has accepted the evidence of tarakeshvar's father, Kedar, that the petitioner Asit Ranjan, told of the proposed purchased purchase by his son, gave him to understand that he would not buy, giving Tarakeshwar the freedom to go in for the deal : evidence which the trial judge, unfortunately, passes by. It is not right to say as Mrs. Bose does, that nothing like it has been put to Asit ranjan. His cross-examination bears : ''not a fact that before his purchase o. P. No. 1 (Tarakeswar) asked me to purchase and told that he would not purchase if I would". Because, in the above cross-examination, tarakeshvar's name is put as the proposer instead of his father kedar's too much need not be made of. The substance of the matter is there. Still, the finding of the appellate judge on this point cannot be sustained for two jurisdictional errors. One, non-examination of other persons present at, the time of such communication by kedar to Asit Ranjan leads the appelate Judge to find "complete corroboration of Kedar's version in the letter raiser August 3, 1962. He even goes so far as to say : ". . . only because of this representation conveyed through the. . . letter. . . . . opposite party No. 1 (Tarakeshvar altered his position and purchased the property".-a finding, for which there is no soupcon of evidence even, and which Mr. Das Gupta. wife his usual fairness, does not support. Then, the last word on the deal is not said in the letter, as noticed. So, here is another breach of law : resting a finding of corroboration on no evidence : committed by the appellate judge in the exercise of his jurisdiction. Das Gupta. wife his usual fairness, does not support. Then, the last word on the deal is not said in the letter, as noticed. So, here is another breach of law : resting a finding of corroboration on no evidence : committed by the appellate judge in the exercise of his jurisdiction. Two, this sort of misreading the letter colours and vitiates the learned judge's conclusion on Kedar's version, it being impossible to disentangle such misreading: finding corroboration where there is none : from the finding on Kedar's evidence. Indeed the finding rests on this manner of misreading. On top of all that, the question is : can there be estoppel against statute? The answer is : No. So, here again, the trial judge's conclusion on absence of estoppel will stand the appellate judge's contrary conclusion will not. Mr. Das Gupta's contention about promissory estoppel, also known as equitable or quasi-estoppel, may now ho noticed. (12) Sat Narain v. Union of India, AIR 1961 Punjab 314, stands on its own facts and does not reach the case on hand. The plaintiff there (Sat Narain)threw a 'sop' to the requisitioning authority, by whose order his house was requisitioned : de-requisition my house, and I shall forgo compensation for the period my house is in your occupation'. The 'sop' yielded result. The house was de-requisition-v. Sat Narain, however, could not ist the temptation of suing for compensation : Rs. 50,000, let alone another sum. But promissory estoppel stood between him and his success. Sat narain's case apart, I have been referred to Halsbury's Laws of England, 3rd edition, vol. 15, page 175, article 344, thee gist of which is that once there has can a promise, intended to affect the legal relations between the promisor and the promisee, and it has been acted upon, the promisor cannot be allowed to revert to their previous legal relations, just as Sat Narain was not allowed to do. Such is the case too of (13)Central London Property Trust limited v. High Trees House Limited, (1947) 1 KB 130, where reduction by the lessor of the rent payable by the lessee, because of abnormal conditions, could not bind the lessor, when those conditions were no more. Such is the case too of (13)Central London Property Trust limited v. High Trees House Limited, (1947) 1 KB 130, where reduction by the lessor of the rent payable by the lessee, because of abnormal conditions, could not bind the lessor, when those conditions were no more. So, that is the test legal relations before the premise and the promise affecting such relations, be the relations contractual (lessor and lessee) or not (the requisitioning power under the law, and the citizen whose property is requisitioned ). Here, what were the legal relations between Asit Ranjan and Tarakeswar, before the promise Kedar attributes to asit Ranjan ? None. A promise creation legal relations between the promisor and the promisee ? Let that be regarded as a test too. But what legal relations are created, between tarakeshwar and Asit Ranjan foist with a premise by Kedar ? None. Hence, this doctrine cannot be pressed into service. Promissory estoppel and absence of legal relations go ill together. 13. ONLY another contention of Mr. Das Gupta resins. The right of pre-emption is a weak right, not looked upon with favour by courts, and liable to be defeated by all legitimate methods, such as the vendee allowing a claimant of a superior or equal right to be substituted in his place, or to delay, after the contract of sale, making the sale-deed, in absence of which the title does net pass from the vendor to the vendee, and the right to enforce pre-emption is stalled: (9) Bisan Singh v. Khazan Singh and (8) Radha Kishan v. Shridhar (supra ). That, no doubt, is true. The principle appears to be that there are no equities in favour of a pre-emptor who is armed by statute or ether law to disturb a valid transaction. To say so, however, is not to say that the right does not exist or has been written off. And I see no legitimate method by which, it can be said, Asit Ranjan's pre-emptive right has been defeated. 14. (14) SUNDAR Singh v. Narain singh, AIR 1966 SC 1977 , cited by Mr. To say so, however, is not to say that the right does not exist or has been written off. And I see no legitimate method by which, it can be said, Asit Ranjan's pre-emptive right has been defeated. 14. (14) SUNDAR Singh v. Narain singh, AIR 1966 SC 1977 , cited by Mr. Das Gupta, has this for its ratio, amongst others : By virtue of section 24 of the Patiala and East Punjab States union Holdings (Consolidation and prevention of Fragmentation) Act, 5 of 2007 B. K., an owner has the same right in the laud, allotted in consolidation proceedings, as he had in his original holding. That being so, the pre-emptor follows the land sold, as also the land allotted in consolidation proceedings in lieu of such land. Such ratio cannot be assimilated to the case in hand. Nothing more remains to be noticed in the very helpful address it has been my privilege to hear from the bar. 15. IN the result, the rule succeeds and be made absolute. The order of the subordinate judge be set aside and that of the munsiff be restored, save that each party do pay and bear its costs throughout.