JUDGMENT 1. - This is a second appeal by legal representatives of Maganlal plaintiff against the decree of the Additional District Judge, Dungarpur dated October 13, 1976 passed in Civil First Appeal No 11 of 1975 affirming the decree of Civil Judge, Dungarpur dated March 29, 1973 dismissing his suit for pre-emption. 2. Facts leading to the filing of the second Appeal are that the houses of plaintiff Maganlal and vendor Chhabilal were situated in Mohalla Singora Seri in the town of Dungarpur within the same boundary wall. According to the plaintiff, the portion of the house shown in yellow colour in the site plan Ex. 1 and marked ABCD and EFGH belonged to the plaintiff. The portion which was joint between the plaintiff and defendant No. 2 Nasir Mohammed had been shown in Ex. 1 green colour and has been marked as HIWG, VIJK-LMPN. The portion of the house which have been marked as AB, Fl-F, NPQT-D and UVWX and shown in blue colour and the portion marked CQIR and shown in crimson colour belonged to Chhabilal defendant No. 1. At place marked" "there is a khirki which was joint and the plaintiff and Chhabilal defendant No. 1 used to reach to the portions of their respective houses after passing through the chowk and parsal. According to the plaintiff, the walls marked QC/QI/AB and BE were joint walls of the plaintiff and defendant No. 1 Chhabilal. It was alleged that the defendant No. 1 secretly sold two rooms of his house portion to defendant No. 2 on March 11, 1966 for a sum of Rs. 2000/-. According to him, the walls QC and QI of these rooms were joint between the plaintiff and defend at No. 1. This sale was made by Chhabilal in favour of defendant No. 2 Basir Mohammed who is respondent before this Court. On coming to know of this fact, the plaintiff gave a notice to the defendants claiming his right to preemption over the property sold by Chhabilal to Nasir Mohammed. It was further alleged that Prasal marked FGHE belonged to the plaintiff and the same was sold without any authority by the defendant No. 1 to defendant No. 2. The value of this parsal' was assessed by the plaintiff at Rs. 500/-. The plaintiff thus that prayed on payment of Rs. It was further alleged that Prasal marked FGHE belonged to the plaintiff and the same was sold without any authority by the defendant No. 1 to defendant No. 2. The value of this parsal' was assessed by the plaintiff at Rs. 500/-. The plaintiff thus that prayed on payment of Rs. 1500/- by him, the two rooms sold by defendant No. 1 to defendant No. 2 may be reconveyed to him on the ground of his right of preemption. It was further pleaded that in case the Court comes to the conclusion that the plaintiff is liable to pay more amount, he is also ready to pay the same. 3. Both the defendants filed a joint written statement and they denied that parsal marked EFGH is the property of the plaintiff. It was asserted that the parsal was the property of the defendant No. 1 and the same was validly sold by him to defendant No. 2. It was further pleaded that Khirki, chowk with stair case and the two walls were not joint property of the parties but the same were exclusive property of the defendant No. 1 and that the plaintiff had only right of a easement of way through the khirki and chowk. This right was also extinguished on account of its non user. It was further pleaded that an agreement was entered into between the plaintiff and the defendant No. 1 under which the plaintiff had waived his right of preemption, if any, and he had also acquiesced in the transaction of the sale and, therefore, the suit for preemption was not maintainable. The defendant No. 2 also took a plea that after the purchase of the property he had spent an amount of Rs. 1500/- and he was entitled to get this amount in case the plaintiff succeeded. The suit was also said to be under valued. 4. The trial court framed 14 issues in the case. It held that the plaintiff's house was a dilapidated house which had fallen. It was described of as a roda and not a built house. 'Parsal' marked EFGH was held as belonging to Chhabilal defendant No. 1 and therefore, it could be validity transferred by him to the respondent. Under issue Nos. It held that the plaintiff's house was a dilapidated house which had fallen. It was described of as a roda and not a built house. 'Parsal' marked EFGH was held as belonging to Chhabilal defendant No. 1 and therefore, it could be validity transferred by him to the respondent. Under issue Nos. 3 and 4, the trial court held that the plaintiff Maganlal by entering into a compromise with Chhabilal had given up all his possible claims in the property transferred by Smt. Shringaribai to Chhabilal and be only retained a right of way through the khirki, chowk and parsal. The wall marked QC and the stair case marked F1. F2, in the site plan Ex. 1, were held to be joint property of the parties. So far as wall marked QH was concerned, it was held as belonging exclusively to the defendant No. 1. Thus the trial court held that the plaintiff was a cosharer in the stair case which was a part and parcel of the property transferred. It was also held that the right of way of the plaintiff to his property had not been extinguished. The trial court still dismissed, the suit of the plaintiff solely on the ground that the suit for partial pre-emption of the property sold was not maintainable. The reason given was that the plaintiff had valued his suit at Rs. 1500/- and had paid court fees accordingly. The reason of valuing the property at Rs. 1500/- was that the plaintiff had excluded 'Parsal' EFGH from his claim of pre-emption. The Civil Judge held that a plaintiff claiming right of pre-emption cannot sue only for a part of the property. 5. Thus on the basis of its findings on issue No. 11 against the plaintiff, it dismissed the suit with costs. 6. Aggrieved by this decree the plaintiff filed the First Appeal No. 11 of the 1975. This appeal was decided by the Additional District Judge, Dungarpur on October 13, 1976. The Additional District Judge dismissed the appeal filed by the plaintiff on two grounds. Firstly. he stated that suit for partial pre-emption was not maintainable. Secondly he disagreed with the findings of the trial court on issue No. 8. It may be mentioned that issue No 8. The Additional District Judge dismissed the appeal filed by the plaintiff on two grounds. Firstly. he stated that suit for partial pre-emption was not maintainable. Secondly he disagreed with the findings of the trial court on issue No. 8. It may be mentioned that issue No 8. was to the effect as to whether the plaintiff gave up his right of pie-emption in respect of the suit property under the agreement dated September 2, 1966. On this issue the trial court had stated that there was no mention in the agreement dated September 2, 1966 (Ex. A. 8) that the plaintiff Maganlal had given up his right of pre-emption over the property. According to him, the plaintiff had only given up proprietary claim to the property gifted by Sint. Shringarihai to Chhabilal. The trial court also referred to the agreement Ex. 6 whereunder Chhabilal defendant had undertaken that he would not transfer the property to any non-vegetarian. Harijan, Musalman or Bohra. This according to the trial court, showed the intention on the part of the parties to leave the plaintiff's right of preemption intact. The Additional District Judge Dungarpur, however, took a different view with regard to the interpreting to be placed on the agreements Exs. A 8 and 6 According to him by agreement Ex. A. 8, the plaintiff had agreed that he will have no concern with the property which had been gifted by Smt. Shingari to the defendant No 1. and will not raise any dispute about it, it was observed by the Additional District Judge that when the agreement Ex. A. 8 was entered into on September 2, 1966, it was in the knowledge of the plaintiff that Chhabilal had already sold his house property to the respondent Nasir Mohammed and despite that the plaintiff did not mention in the agreement about retaining his right of preemption. On the other hand, he agreed that he will not raise any dispute with the defendant No. 1 with respect to the house property which had been gifted by Smt Shringari in his favour Apart from that by agreement Ex. 6 which was entered into on the same date all that was mentioned was that the defendant No. 1 would not transfer his property to any non-vegetarian. Harijan, Muslim or Bohra. 6 which was entered into on the same date all that was mentioned was that the defendant No. 1 would not transfer his property to any non-vegetarian. Harijan, Muslim or Bohra. This implied that the plaintiff agreed that the defendant No. 1 shall be at liberty to sell the property to any other person. By the document Ex. 6 also, it was held, the defendant No. 1 waived his right of pre-emption and it did not subsist when the suit was filed. 7. Mr. L.R. Mehta appearing for the plaintiff appellant contended that the courts below were wrong in holding that the plaintiff's suit was only for partial pre emption of the property sold. The contention of Mr. Mehta on this point appears to he sound. The plaintiff had mentioned in the plaint that the defendant No. 1 had sold the property to defendant No. 2 for Rs. 2000/-. However, the plaintiff had pleaded that `parsal' marked EFGH belonged to him and the defendant No. 1 was not competent to sell it to defendant No 2 for this reason the plaintiff valued the price of parsal at Rs. 500/- and valued the suit only for Rs. 1500/- which was the value of the remaining property. However, the plaintiff had mentioned in para 12 of the plaint that if the court was of the view that the plaintiff 'could pay court fees also on the amount of Rs. 500/- the plaintiff was prepared to pay the same. In the relief clause also the plaintiff, in the alternative, pleaded that in case the court comes to the conclusion that higher amount than Rs. 1500/- was payable by the plaintiff for sale of the house to him, he will pay the sane to the defendant No. 2. On a rational construction of this pleading, it appears that the plaintiff had pleaded an alternative case for the reason that he was claiming parsal' as belonging to him. However he was ready to pay the entire sale amount of Rs. 2000/- in case the court decided and was also ready to pay the court fees on the amount of Rs. 500/-. As a matter of fact, the plaintiff paid the deficit court fee on the amount of Rs. 500/- on February 27, 1975 when the of the had reported that the court fee was deferent. 2000/- in case the court decided and was also ready to pay the court fees on the amount of Rs. 500/-. As a matter of fact, the plaintiff paid the deficit court fee on the amount of Rs. 500/- on February 27, 1975 when the of the had reported that the court fee was deferent. In such circumstances, it cannot be contended that the plaintiff's suit was only for partial pre-emption. It was an alternative suit and the plaintiff could fall upon the alternative case pleaded by him claiming pre-emption in respect of the entire Property sold. The dismissal of' the plaintiff's suit on this ground was, therefore, quite unjustified. The findings on issue No. 11 given by the courts below is therefore, not correct and is reversed and this issue is decided in favour of the plaintiff and against the defendants. 8. The main issue to be decided in the case is issue No. 8. This was one of the substantial questions of law on which this appeal was admitted on March 15, 1977. I have already detailed the conflicting findings given by the trial court and the first Appellate Court on this issue. It appears, there was a registered gift deed Ex. 3 dated November 21, 1963 registered on November 30, 1963 which Smt. Shingari widow of Navalchand had executed in respect of a shop and house in favour of Chhabilal defendant No. 1. On account of this reason a dispute had arisen between Maganlal plaintiff and Chhabilal and Maganlal had instituted Civil Suit No. 56 of 1966 against Chhabilal challenging the gift made by Smt. Shingari Bai. That suit was compromised between the plaintiff and Chhabilal. An agreement was also executed between them on September 2, 1966 which is Ex A.6 on the record. This is an admitted document. Chhabilal agreed to transfer the gifted shop to Maganlal plaintiff. for a consideration of Rs. 2000/- and the possession of the shop was also delivered to Maganlal. Maganlal withdrew his Civil Suit No. 56 of 1966. It was agreed that Maganlal will not raise any dispute with regard to the house property which had been gifted by Smt. Shingaribai to Chhabilal. It was mentioned in the agreement that Maganlal will be the absolute owner of this shop and will be entitled to transfer the same at his will. From the document Ex.A.8. It was agreed that Maganlal will not raise any dispute with regard to the house property which had been gifted by Smt. Shingaribai to Chhabilal. It was mentioned in the agreement that Maganlal will be the absolute owner of this shop and will be entitled to transfer the same at his will. From the document Ex.A.8. I do not find any thing in it which can be inferred that the plaintiff Maganlal waived his right of pre-emption in relation to the house property of Chhabilal. All that was mentioned with respect to the house property was that the plaintiff Maganlal will not raise dispute in relation to that property which had been gifted by Smt. Shingaribai to Chhabilal. The agreement was arrived at in the back-ground that Maganlal had instituted a suit challenging the gift made by Smt. Shingaribai of the alleged ancestral property. By the agreement Ex A.8., Maganlal only acknowledged the right of Chhabilal with respect to the house property which had been gifted to him and further that he would not raise dispute in relation to that. There is no assertion in this document that Chhabilal will be entitled to sell the house property to any one just as there is mention in relation to the shop which was given by Chhabilal to Maganlal plaintiff. The Additional District Judge Dungarpur was, therefore, wrong in holding that by the agreement Ex.A8., the plaintiff waived his right of pre-emption arising from the sale of the house property by Chhabilal in favour of a stranger. 9. However, it may be mentioned here that on the same date i.e. September 2, 1966 another agreement Ex. 6 was also arrived at between the plaintiff Maganlal and defendant No. 1 Chhabilal. Both the agreements Exs.A8 and 6 were contemporary documents executed on the same date. Before filing the present suit for pre-emption a notice dated December 9, 1966 had been served on behalf of Maganlal plaintiff to the defendant, claiming his right of preemption of the house property sold, by the defendant No. 1 to the respondent. In this notice it was mentioned on behalf of Maganlal plaintiff that Chbabilal had sold his house property to the respondent on March 11, 1966 and that Maganlal heard about this sale of property made by Chhabilal to Nasir Mohammed on March 23, 1966. In this notice it was mentioned on behalf of Maganlal plaintiff that Chbabilal had sold his house property to the respondent on March 11, 1966 and that Maganlal heard about this sale of property made by Chhabilal to Nasir Mohammed on March 23, 1966. It is clear from the contents of the notice dated December 9, 1966 that the plaintiff had come to know of the sale having been made by Chhabilal in favour of Nasir Mohammed on March 23, 1966. He also made inquiry in the office of the Sub-Registrar, Dungarpur and found hat a sale deed had been executed by Chhabilal. Thus it is amply clear that when the agreements Exs.A.8 and 6 were executed by the plaintiff and Chhabilal defendant No. 1, the former very well knew that Chhabilal had already sold the suit house property to Nasir Mohammed on March 11, 1966. Having full knowledge of the sale by Chhabilal, the agreement Ex. 6 were executed, in Ex. 6 it was recited that Smt. Shingaribai had gifted a house situated in Singora to Chhabilal. It was further mentioned that adjoining there was house of Chhabilal, there was house of the plaintiff and both the houses were located within the same khirki. Both the plaintiff,' and defendant No. 1 belonged to the same caste and were also related. It was then recited that the plaintiff had apprehension that Chhabilal might sell his house to a Muslim, Bohra or a Harijan. It was then mentioned that the plaintiff and defendant No. 1 were Jains by religion and believed in non-violence. Therefore, it was agreed with the intervention of relatives and the friends, between them that in case the parties felt necessity to sell their respective house properties, they will not sell the same to a Muslim, Bohra Hairijan, non-vegetarian or to a person belonging to a caste who habitually takes wine. It is very pertinent to note that agreement Ex. 6 was executed between the plaintiff and defendant No. 1 despite full knowledge to both of them that the defendant No. 1 had already about six months prior to this agreement sold his house property to Nasir Mohammed (defendant No. 2) On the date the agreement Ex. It is very pertinent to note that agreement Ex. 6 was executed between the plaintiff and defendant No. 1 despite full knowledge to both of them that the defendant No. 1 had already about six months prior to this agreement sold his house property to Nasir Mohammed (defendant No. 2) On the date the agreement Ex. 6 was entered into Chhhbilal defendant No. 1 was left with no right, title or interest in the house property which is the subject matter of this suit as he had already sold the same to the respondent on March 11, 1966. The real object of entering into this agreement on September 2, 1966 clearly, therefore, was a collusive design between the plaintiff and defendant No. 1, so that the plaintiff may be helped and strengthened to file suit for pre-emption in respect of the house property which had already been sold by the defendant No. 1 to a Muslim named Nasir Mohammed six months prior to this agreement. Agreement Ex 6 has one more necessary implication in it and it is that the plaintiff and defendant No. 1 also agreed that they could sell their respective houses whenever they felt its necessity and the only restriction which they wanted to impose was that the vendee should not be Muslim, Bohra, Harijan etc. This subsequent restriction is meaningless What is important is that it was agreed that both the sides could cell their respective houses whenever they felt its necessity and this special feature in the agreement amounts to waiver of the right of pre-emption on the part of the plaintiff. A right of pre-emption is a weak right and it should sub 1st up to the date of the suit as well as on the date of passing the decree. The conduct of the plaintiff in agreeing that both the plaintiff and defendant No. 1 could sell their respective properties when they felt its necessity is a definite conduct in negation of the, right of pre-emption of each other on the sale of the property. For the remaining part of the agreement that the sale will not be made to Muslim, Bohra, Harijan etc. it may be stated that such a condition was void as it was opposed to public policy. In any event, by necessary implication, it arises from Ex. For the remaining part of the agreement that the sale will not be made to Muslim, Bohra, Harijan etc. it may be stated that such a condition was void as it was opposed to public policy. In any event, by necessary implication, it arises from Ex. 6 that both the plaintiff and defendant No. 1 otherwise gave consent to each other to sell their respective property. Whenever they felt its necessity. This act of the plaintiff clearly, amounts to waiver of his right of pre-emption which, as already stated is a weak right and can be defeated in case it is established that the plaintiff had by his conduct waived his right either before or even after the suit. On this ground, therefore, the plaintiff's suit deserved to be dismissed. 10. Consequently, I do not find any force in this second appeal and the same is dismissed. In the circumstances of the case, I shall leave the parties to bear their own costs throughout.Appeal dismissed. *******