The plaintiff has filed this appeal. O.S.No.252/1993 filed in the Court of Prl. Civil Judge (Jr.Dn.) at Malur, to pass a decree of declaration that the sale transaction of the suit property between the defendants is not binding on the plaintiff and for grant of perpetual injunction against the defendants, specifically to perform the decree passed in O.S.No.25/1989 and for execution of the sale deed and put him in full possession having been dismissed, R.A.No.257/2005 was filed in the Court of Civil Judge (Sr.Dn.), at Kolar. The II Additional Civil Judge (Sr.Dn.), Kolar, itinerating at Malur, having dismissed the appeal, this second appeal was filed.

2. For the sake of convenience, the parties in this appeal will be referred to as the plaintiff and the defendants i.e., in the rank in which they stood in the Trial Court.

3. The plaintiff and the defendant No.1 are brothers. The plaintiff had filed O.S.No.25/1989 in the Court of Munsiff at Malur, against his brother, the first defendant and his father Sri Chinnappaiah @ Erappa, to pass a decree and declare that the registered partition deed dated 30.09.1980 is void and for restraining the defendants from alienating the ‘C’ Schedule property. By a decree dated 20th April, 1993 (Ex.P1), the claim made that the first defendant has no right over the said ‘C’ Schedule property was dismissed. However, it was decreed that the first defendant shall not sell the said property without notifying the plaintiff.

4. Brief facts of the case are that the plaint schedule property was allotted to the share of the defendant No.1 in a partition effected by Sri Chinnappaiah @ Erappa, as per the registered Partition Deed dated 30.09.1980. After the decree dated 20.04.1993 was passed in O.S.No.25/1989, the first defendant, on 19.07.1993, notified the plaintiff that he having recently celebrated the marriage of his daughter by raising hand loans and as he is in need of purchasing bullocks and cart for his agricultural operations, intends to sell the suit property i.e., to repay the debt and for legal necessities. It was notified that he is in urgent need of the money. The plaintiff sent a reply, on 29.07.1993, stating that he is prepared to purchase the property for the market value. However, the plaintiff did not quote the price or state as to what the market value is. The first defendant sent a rejoinder on 02.08.1993 and stated that he has the commitment and would deal with the property on his own.

5. O.S.No.252/1993 was filed on 21.08.1993 for passing a decree of injunction simpliciter by claiming right of pre-emption pursuant to the decree passed in O.S.No.25/1989. The plaint was amended, after the sale of the suit property, on 24.08.1993, in favour of the second defendant. Additional pleading and additional relief of decree of declaration that the sale transaction between the defendants be declared as void and not binding and to direct the defendants to execute the sale deed at the market value and put the plaintiff in possession was inserted.

5.1. The defendants filed written statement and additional written statement inter alia stating that there is no violation of the decree passed in O.S.No.25/1989 and that the sale of suit property made on 24.08.1993 is lawful. Various other defences have been taken.

5.2. The Trial Court raised issues. During trial, the plaintiff got himself examined as PW-1 and examined one witness as PW-2. The documents produced were marked as Exs.P1 to P4. The defendants got themselves examined as DW-1 and DW-2 respectively. A witness was examined as DW-3. The documents produced were marked as Exs.D1 to D17.

5.3. The Trial Court dismissed the suit on the ground that there is no merit in the claim of the plaintiff about his right of pre-emption, as the decree passed in O.S.No.25/1989 does not contain express declaration about the right of the plaintiff to purchase the suit property nor is there any direction directing the defendant No.1 to give an opportunity to the plai