The court held that pre-emption based on vicinage is unconstitutional, and disputes regarding pre-emption rights necessitate a full trial due to the involvement of mixed questions of law and fact.

ORDER :

M.NAGAPRASANNA, J.

Petitioners are before this Court calling in question an order dated 23.09.2024 which rejects the application filed by the petitioners under Order VII Rule 11(a) and (d) read with Section 151 of the Code of Civil Procedure, seeking rejection of the plaint.

2. Heard Sri.Pavan B. Doddatti, learned counsel appearing for the petitioners, Sri.Girish A. Yadawad, learned counsel appearing for respondent No.1, Sri.Sourabh Hegde, learned counsel appearing for respondent No.2.

3. Facts in brief, germane, are as follows:

3.1. Before embarking upon the consideration of the issue on its merit, I deem it appropriate to notice the relationship between the protagonists of the lis. The petitioner No.1- Sri.Kashimasab is defendant No.1. The petitioner No.2-Sri.Akabarasab is defendant No.2. Respondent Nos.1 and 2 are plaintiff and defendant No.3, respectively. The relationship between the parties is as follows. One Sri.Rajesab had two sons, Sri.Allisab and Sri.Mohammadsab. One Sri.Yakubasab is the son of Sri.Allisab. Petitioners-defendant Nos.1 and 2 are sons of Sri.Yakubasab. Sri.Mohammadsab had a son by name Sri.Maibubasab. Respondent No.1-plaintiff is the son of Sri. Maibubasab.

3.2. A registered sale deed comes to be executed by the petitioners-defendant Nos.1 and 2 in favour of defendant No.3. On 19.01.2022, the respondent No.1-plaintiff declares his right to pre- empt the sale. This leads the protagonists to the competent Civil Court in O.S.No.36/2022 seeking a relief of declaration and injunction. The petitioners-defendant Nos.1 and 2 filed their Written Statement contending that they are the owners of the schedule property and had sold a part of the land to respondent No.2- defendant No.3 and other parties. However, the respondent No.1- plaintiff has only impleaded defendant No.3 into the suit. The defendant Nos.1 and 2 then filed an application under Order VII Rule 11(a) and (d) read with Section 151 of CPC seeking rejection of the plaint in O.S.No.36/2022 urging several contentions. The concerned Court in terms of the impugned order dated 23.09.2024 rejects the application holding it to be a matter of trial. The petitioners-defendant Nos.1 and 2 claiming to be aggrieved by the said order of the concerned court, are at the doors of this Court seeking a prayer that an application filed by them under Order VII Rule 11(a) and (d) read with Section 151 of CPC, must be allowed and the plaint must be rejected.

4. Learned counsel appearing for the petitioners-defendant Nos.1 and 2 would vehemently contend that the concerned Court could not have rejected the application on the ground that cause of action is a bundle of facts and would require a full-fledged trial. The Court ought to have considered that the suit is barred by law since right to pre-emption by vicinage has been declared unconstitutional by the Apex Court in A.RAZZAQUE SAJANSAHEB BAGWAN vs. IBRAHIM HAJI MOHAMMED. HUSAIN , (1998) 8 SCC 83 , wherein at para 3, it holds as follows:

“3. The contention of the learned counsel for the appellants is that the only ground on which the plaintiff's suit has been decreed is that he being a “Shafi-i-jar” was entitled to claim the right of pre-emption. He submitted that this Court in Bhau Ram v. Baij Nath Singh [AIR 1962 SC 1476 : 1962 Supp (3) SCR 724] and in Sant Ram v. Labh Singh [AIR 1965 SC 314 : (1964) 7 SCR 756] has held that the law of pre-emption based on vicinage is void. Unfortunately, attention of the High Court was not drawn to these two decisions of this Court and, therefore, the High Court did not consider this aspect. As the very basis of the claim has been held to be unconstitutional by this Court, the suit filed by the p