ORDER

1. DEFENDANTS 4 AND 5 HAVE FILED THE PRESENT APPEAL WITH THE LEAVE OF THE COURT AGAINST THE FINAL JUDGMENT AND ORDER DATED 20-2-2002 PASSED BY THE HIGH COURT OF KERALA AT ERNAKULAM IN AS NO. 167 OF 1996.

2. BY THE IMPUGNED JUDGMENT THE HIGH COURT HAS ALLOWED THE APPEAL FILED BY THE RESPONDENT-PLAINTIFFS (HEREINAFTER REFERRED TO AS "RESPONDENTS 1 AND 2") AND REVERSED THE JUDGMENT AND THE DECREE PASSED BY THE TRIAL COURT. RESPONDENTS 1 AND 2 AND DEFENDANTS 1, 2 AND 3 (NOW RESPONDENTS 3, 4 AND 5) BELONG TO THE SAME FAMILY HAVING A COMMON ANCESTOR. THEY INHERITED THE PROPERTY JOINTLY WHICH WAS SUBJECTED TO A PARTITION IN THE YEAR 1966.

3. THE PLAINT SCHEDULE PROPERTY (HEREINAFTER REFERRED TO AS "THE PROPERTY") IS A PORTION OF THE PROPERTY ALLOTTED TO THE SHARE OF RESPONDENTS 3-5. THERE IS A PRE-EMPTION CLAUSE IN THE PARTITION DEED (EXT. A-1) WHICH PROVIDES THAT IF ANY PARTY WANTS TO SELL HIS PROPERTY, HE SHOULD FIRST OFFER IT TO THE MEMBERS OF THE THAVAZHI (A BRANCH OF THE FAMILY) IN WRITING AND THAT THE PROPERTY SHALL BE SOLD TO OUTSIDERS ONLY IF NO MEMBER OF THE THAVAZHI IS PREPARED TO ACCEPT THE OFFER WITHIN A PERIOD OF SIX MONTHS. THE RELEVANT PORTION OF THE PARTITION DEED (ANNEXURE P-L) READS AS UNDER:

". .. IT IS DECIDED THAT THE RIGHT TO SELL IN CASE AN OCCASION ARISES FOR ANYONE TO SELL THEIR PROPERTY; IT CAN BE SOLD ONLY AFTER GIVING NOTICE IN WRITING TO THE OTHER MEMBERS OF THE FAMILY AND ONLY WHEN THEY DO NOT COME FORWARD TO PURCHASE THE PROPERTY WITHIN A PERIOD OF SIX MONTHS, TO BE SOLD TO OTHERS."

4. RESPONDENTS 3 TO 5 SOLD THE PROPERTY TO THE APPELLANTS ON 30-9-1994. ACCORDING TO THE APPELLANTS, THE PROPERTY HAD BEEN SOLD TO THEM AFTER ASCERTAINING FROM THE MEMBERS OF THE FAMILY AS TO WHETHER ANYONE OF THEM WAS WILLING TO PURCHASE THE SAME. AS RESPONDENTS 1 AND 2 DID NOT EXPRESS THEIR WILLINGNESS TO PURCHASE THE PROPERTY, THE SAME WAS SOLD TO THE APPELLANTS.

5. RESPONDENTS 1 AND 2 FILED OS NO. 390 OF 1994 SEEKING A DECLARATION THAT THE SALE OF THE PROPERTY MADE BY RESPONDENTS 3 TO 5 IN FAVOUR OF THE APPELLANTS WAS IN VIOLATION OF THE PRE-EMPTION CLAUSE IN THE DEED OF PARTITION WITH A PRAYER FOR RESALE OF THE PROPERTY IN THEIR FAVOUR TOGETHER WITH HANDING OVER OF THE POSSESSION TO THEM FOR A CONSIDERATION OF RS 40,000.

6. RESPONDENTS 3 TO 5 FILED A COMMON WRITTEN STATEMENT CONTENDING THAT THE PROPERTY WAS SOLD TO THE APPELLANTS AS THE FAMILY MEMBERS INCLUDING RESPONDENTS 1 AND 2 (THE PLAINTIFFS) WERE NOT WILLING TO PURCHASE THE SAME. THIS FACT WAS ASCERTAINED BY THEM THROUGH SHRI OOSMAN, ADVOCATE, WHO WAS LOOKING AFTER THE LEGAL MATTERS/AFFAIRS OF THE APPELLANTS. ACCORDING TO THEM, RESPONDENTS 1 AND 2 (THE PLAINTIFFS) HAVE WAIVED THEIR RIGHT TO PRE-EMPT THE LAND AND, THUS, THEY WERE ESTOPPED FROM CLAIMING THE RELIEF PRAYED FOR IN THE SUIT. THE APPELLANTS IN THEIR WRITTEN STATEMENT TOOK THE STAND THAT THEY WERE THE BONA FIDE PURCHASERS FOR CONSIDERATION AND THAT THE PROPERTY WAS PURCHASED BY THEM AFTER BEING SATISFIED THAT RESPONDENTS 1 AND 2 AND OTHER MEMBERS OF THE THAVAZHI (FAMILY) WERE NOT WILLING OR CAME FORWARD TO PURCHASE THE PROPERTY, THEY HAD SPENT RS 80,000 ON ITS IMPROVEMENT. THEY HAD ALSO CONSTRUCTED A COMPOUND WALL ON THE NORTHERN SIDE OF THE PROPERTY AND PUT UP A GATE. THEY HAD ALSO TAKEN STEPS TO START WORK FOR THE CONSTRUCTION OF A RESIDENTIAL HOUSE.

7. THE TRIAL COURT DISMISSED THE SUIT AND HELD THAT THE PROPERTY WAS SOLD TO THE APPELLANTS WITH THE KNOWLEDGE AND CONSENT OF RESPONDENTS 1 AND 2. IT WAS FOUND AS A FACT THAT THE PROPERTY WAS MEASURED BEFORE THE SALE. SINCE THE PLAINTIFFS WERE RESIDING IN THE ADJOINING PLOT ON THE WESTERN SIDE ABUTTING THE SUIT PROPERTY, THEY MUST HAVE HAD THE KNOWLEDGE REGARDING THE SALE OF THE PROPERTY. IT WAS ALSO HELD THAT THE ORIGINAL DOCUMENT WAS TAKEN BY RESPONDENTS 3 TO 5 FROM RESPONDENTS 1 AND 2 (THE PLAINTIFFS) FOR THE PURPOSE OF SALE. THE STORY PUT FORTH BY RESPONDENTS 1 AND 2 THAT, THE SALE DEED WAS TAKEN FROM THEM REPRESENTING THAT THE SAME WAS REQUIRED FOR THE P