( 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.

( 4 ) THE suit filed by the plaintiff was dismissed by the Joint Civil judge JD, Hubli. On appeal to the I Addl Dist Judge, Dharwar, the decree passed by the Court of first instance was set aside and the suit of the plaintiff was decreed. That decree was challenged by the second defendant in rsa. 343/1969 in this Court. This Court set aside the decree passed by the: learned I Addl Dist Judge, Dharwar, and remanded the case to the lower appellate Court. The case was remanded with a specific direction to examine the question as to whether the plaintiff is entitled to any relief on the basis of the agreement Ex. 46 dated 27th August 1949. While remanding the case this Court affirmed the finding recorded by the learned I Addl Dist Judge to the effect that there is np customary law regarding pre-emption among Muslims preivailing in the Bombay Karnatak area of the New State, of Mysore where the suit property is situate. This court also affirmed the finding to the effect that the agreement under Ex. 46 is not vitiated by misrepresentation or fraud. After remand, the I Addl district Judge of Dharwar allowed the plaintiff's appeal and set aside the decree passed by the Court of first instance. The learned First Additional dist Judge directed that the parties shall get the suit property valued and the price thereof fixed in the execution proceedings. It has further directed that in case the parties refused to choose the panchas or if there is no agreement on this point, the Court shall follow the procedure laid down in S. 8 of the Arbitration Act and get the arbitrator appointed by the Court. It further directed that thereafter the plantiff shall deposit the said amount into Court and defendant 1 should execute a sale deed in favour of the plaintiff in respect of the suit property. In the event of the failure on the part of the first defendant to execute the sale deed, the Court directed that the plaintiff shall get the sale deed executed through Court. The Court also gave consequential direction regarding the delivery of possession from defendants 1 and 2. It is this decree o

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