ABDULAZIZ MOHAMMAD ISAQ KOTHIWALE Vs. ISMAILBEG KASHIMBEG MIRAZ

JUDGEMENT

(1.) THIS appeal is filed against the Judgment and Decree passed in R. A. No. 29/1991 on the file of the I Addi. Civil judge, (Sr. Dn. J, Belgaum, arising out of the judgment and Decree passed in O. S. No. 391/1983 renumbered as O. S. No. 538/ 1999 on the file of II Addl. Munsiff, Belgaum.

(2.) THE appellants are the legal representatives of the second defendant. The first respondent plaintiff filed a suit for specific performance of agreement for sale in respect of suit schedule house property executed by the first defendant. Earlier to agreement for sale, the suit property is mortgaged in favour of the wife of the plaintiff and the plaintiff has taken a portion of the property on lease from his wife as a tenant. An agreement of sale was entered into between the plaintiff and the first defendant under Ex. P. 1 whereunder the first defendant agreed to sell the suit property for a consideration of Rs. 22,000/-and an advance of Rs. 2,000/- was paid. The first defendant was obliged to redeem the mortgage and thereafter to execute the sale deed by receiving the balance of sale consideration. In breach of the terms of the agreement, the first defendant sells the property in favour of the second defendant under Ex. D4 dated 24-8-1982 for a sum of Rs. 45,000/ -. Earlier to the execution of the sale deed Ex. D. 4. The second defendant had filed a suit in O. S. No. 343/1979 against the first defendant and the plaintiff herein for a permanent injunction against the first defendant not to alienate the property in favour of the plaintiff, the temporary injunction is granted. The suit came to be dismissed as withdrawn on 17-8-1983. Thereafter, the plaintiff has filed this suit.

(3.) THE first defendant contended that the suit is barred by time and in view of the preemption right of the second defendant, the plaintiff cannot enforce the agreement to defeat the sale made in favour of the second defendant. The trial Court found that the suit is within limitation and also that the plaintiff has a right of pre-emption and decreed the suit. The Appellate Court confirmed the findings and the Judgment and Decree of the trial Court. Aggrieved by the decree, the present appeal is filed.