Judgment

Tarun Chatterjee, J. —

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,1 [1962 Supp.3 SCC 724] and Sant Ram & Ors. vs. Labh Singh & Ors.,2 [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.1 (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