NANNIBU AND ORS. Vs. GUDUSAB AND ORS.

JUDGEMENT

(1.) THE defendants in O.S. No. 42/2000 on the file of Addl. Civil Judge (Sr.Dn.), Gadag, have come up in this second appeal impugning the divergent finding rendered in the judgment and decree dated 3.3.2004 passed in R.A. No. 25/2003 on the file of District and Sessions Judge, Gadag, wherein the dismissal of plaintiffs suit for preemption in O.S. No. 42/2000 which was dismissed by the judgment and decree dated 22.9.2003 is set aside and the suit of the plaintiffs is decreed.

(2.) THE brief facts leading to this second appeal are that the plaintiff in the original suit Sri Gudusab S/o. Imamhusensab Nadeghar is first cousin of 1st defendant Khajasab S/o. Dawoodsab Nadeghar. According to the plaintiff his father Imamhusensab is brother of 1st defendant's father Dawoodsab and that the property bearing CTS No. 4764 situated in Hulageriban of Laxmeshwar was jointly belonging to the father of plaintiff and as well as father of 1st defendant. It is stated that on 26.8.1996 there was a partition between the plaintiff's father and 1st defendant's father in dividing the property bearing CTS No. 4764 wherein an extent of 120' east -west and 70' north -south was allotted to the share of plaintiff's father and an equal share was allotted to the share of defendant's father.

(3.) IT is the case of the plaintiff that in the year 1998 he came to know about the intention of defendant trying to sell the suit property in favour of 3rd parties which was allotted to the share of the 1st defendant's father subsequently which has come to the 1st defendant and it has been in use and occupation of defendants 1 to 6. Hence he approached the 1st defendant and offered to purchase the suit property by exercising his right of pre -emption. According to the plaintiff, when the defendant did not heed to his request, he approached the Civil Court by filing a suit in O.S. No. 73/1998 seeking the relief of permanent injunction restraining the 1st defendant to sell the suit property in favour of the third parties contrary to his right of pre -emption in deed of partition dated 26.8.1996.