GONSUSAB Vs. MOHAMMED MIYAN URF BABAN

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 5th of November, 1998 passed by the High Court of Karnataka at Banglore in R.S.A. No. 831/1996, by which the second appeal filed by the respondents was allowed and judgment and decree of the courts below were set aside and the suit was decreed with costs.

(2.) The moot question that was raised by the parties before the courts below as well as before the High Court was-whether the law of pre-emption based on vicinage is void as held by this Court in the case of Bhau Ram vs. B. Baijnath Singh (1962) 3 Suppl. SCC 724 ) and Sant Ram and Ors. vs. Labh Singh and Ors. (1964) 7 SCR 756. However, while setting aside the judgments of the courts below, the High Court in second appeal held that the law of pre-emption on the ground of vicinage could not be held to be void and unconstitutional in view of the amendment of the Constitution.

(3.) Mohd. Ismail Urf Badshah-Plaintiff No. l (since deceased) and Mohammed Miyan Urf Baban-Plaintiff No.2 instituted a suit for permanent injunction against Smt. Hamedabegum (Defendant No. 1/Appellant No.3) wife of Mohd Yusuf Maniyar and against Kumar Gonsusab (Defendant No. 2/Appellant No. l) and Kumar Shafi Mohd (Defendant No. 3/Appellant No.2) restraining the appellants from executing a sale deed relating to the suit property on the ground of right of pre-emption, to purchase 6 acres 31 guntas being R.S.No. 164/3B situated at Mishrikoti village of Kalghatagi taluk, Dharwad in the State of Karnataka (hereinafter referred to as the suit property) and for other incidental reliefs. Be it mentioned at this stage, that the original Plaintiff No. 1, namely, Mohd. Ismail Urf Badshah died during the pendency of the proceeding and his heirs and legal representatives were brought on record. In this judgment, the plaintiffs are described as respondents and the defendants are described as appellants.