PUTTAPPA EDEPPA KURLI Vs. HASANSAB USMANSAB MUJAHID

JUDGEMENT

(1.) This is a second defendant's appeal against the decree passed by the I Addl Dist Judge Dharwar, in CA. 191 of 1959 reversing the decree pased by the II Jt Civil Judge (JD) , Hubli in LC.239/1957.

(2.) Respondent 1 Hassan instituted the suit for a declaration that the sale effected in favour of defendant 2 is null and void, for a direction that the suit property be sold to the plaintiff by executing an appropriate sale deed for proper consideration and for delivery of possession of the suit property from the first defendant. The suit relates to property bearing CTS. 776/1 in Ward No.5 of Hubli City. The plaintiff and the first defendant are brothers belonging to Muslim faith. Adjoining properties bearing CTS. Nos.776|2 to 776/6 belonged to the plaintiff. On 15th May, 1957 the second defendant purchased the suit property from the first defendant. It has to be mentioned that on the 27th of August, 1949 defendant 1 has executed an agreement in favour of the plaintiff as per Ex.46. According to the plaintiff the first defendant was under an obligation under the said agreement to offer the property to him in the first instance, as and when he decided to sell the suit property. As, in violation of the said agreement the 1st defendant has sold the property to the second defendant on 15th of May, 1957, the plaintiff came forward with the present suit.

(3.) The suit was resisted principally by the second defendant on various grounds. It was inter alia contended by him that the agreement Ex.46 is not a true and genuine ones and that the same has been secured by misrepresentation and committing fraud. It was also contended that the plaintiff is not entitled to claim any relief of pre-emption. The other contention of the second defendant was that under the agreement no rights flow in favour of the plaintiff on the basis of which the present suit can be maintained.