Sreeniwas Harish Kumar, J.

In the second appeal by the plaintiff in O.S. No. 230/1994 on the file of Civil Judge (Jr. Dn.), Nippani, the substantial questions of law raised at the time of admission are as follows:-

1. Whether the judgment passed in R.A.77/1998 after the death of the appellant therein and the absence of the application for bringing the LRs. on record is sustainable in law?

2. Whether the courts below were justified in coming to the conclusion that the appellant is not entitled to preemption right under section 22 of the Hindu Succession Act?

2. In the first substantial question of law, it appears that wrongly it is mentioned that appellant before the court below died. But the party who died was respondent No. 3, Krishnabai and therefore, the said question needs to be suitably modified. Hence, the question is :-

"Whether the judgment passed in R.A.77/1998 after the death of 3rd respondent, Krishnabai, is sustainable in law when her legal representatives were not brought on record during the pendency of the appeal?"

3. Given a brief account of the pleadings, the plaintiff instituted the suit for the reliefs of declaration that he had got pre-emptory right to purchase the suit land to the extent of 1/3rd joint share of the defendants, for cancellation of the sale deed dated 17.10.1984 executed by defendant Nos. 2 and 3 in favour of defendant No. 1 and for permanent injunction to restrain the defendants from causing obstruction to his peaceful possession and his enjoyment of the suit property. The propositus was one Vithal Jasud, who died after 1956. He had two sons and a daughter, namely, Thukaram, Annasaheb and Housabai. Plaintiff is the second son of Annasaheb. Defendant No. 3, Krishnabai is the wife and defendant No. 2, Vishnu is the son of Thukaram.

4. Suit property is 1/3rd joint share of defendant Nos. 2 and 3 in agricultural land bearing Sy. No. 72-A/1D measuring 6 acres situate at Nippani, Chikkodi taluk, Belagavi district. The plaintiffs-father Annasaheb was the Manager of the joint family and died on 24.02.1986. He had 2/3rd share in the entire land in Sy. No. 72-A/1D. After father' s demise, plaintiffs succeeded to this 2/3rd share. The plaintiffs' family and the defendant Nos. 2 and 3 were in joint enjoyment of the entire land. On 17.10.1984, the defendant Nos. 2 and 3 sold their 1/3rd interest in the said land for a consideration of Rs. 15,000/- to defendant No. 1 without the knowledge and consent of the plaintiff and his other family members. This sale was in contravention of the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. The plaintiff had preferential right to purchase 1/3rd share of the defendants according to Section 22 of the Hindu Succession Act. The plaintiff pleaded that the defendant No. 1 was a stranger to the family and since entire land was under the occupation of the plaintiff and his family members, if defendant No. 1 would take possession of 1/3rd share sold to him, he would be put to great hardship.

5. Defendant No. 1, in his written statement, admitted to have purchased 1/3rd share of the defendant Nos. 2 and 3, but denied the pre-emptive right of the plaintiff. He contended that the plaintiff, his brothers and mother were aware of the sale deed executed in his favour by defendant Nos. 2 and 3 on 17.10.1984. None of them raised objection at the time of sale. He asserted that he took over possession of the land purchased by him. The plaintiff and the defendants had been divided, and therefore, they were not the co-owners of the land. The reliefs that the plaintiff claim were mis-conceived and that the suit was also barred by time.

6. The trial Court dismissed the suit by its judgment dated 25.11.1998. The plaintiff preferred an appeal, R. A. No. 77/1998 in the Court of Senior Civil Judge, Chikkodi. This appeal was dismissed by judgment and decree dated 13.01.2005. Hence, this second appeal by the plaintiff.

7. The counsel for the ap