RAMDEV YADAV Vs. VIDYA PRASAD

JUDGEMENT

(1.) The substantial questions of law involved, formulated and to be answered in this plaintiff's second appeal are as under:-­ "1. Whether the lower Appellate Court was not justified in holding that the suit property vide Schedule 'A' of the plaint is not a joint family property in between the brothers and the finding in relation to partition is perverse ?

(2.) The suit property was originally held by one Chamru Yadav. He had three sons namely Ramdev, plaintiff herein and Ramdular, defendant No.3 and one Ramsunder, who was not party to the suit. The plaintiff filed a suit claiming right of pre-­emption that transfer made by defendant No.3 in favour of defendants No.1 and 2 on 12.7.90 is void and he had preferential right to purchase the suit land in order to maintain integrity of the family and to avoid induction of third party in the ancestral property of the parties. It was further pleaded that for the sake of convenience, the suit property was partitioned in najri partition and pursuant to the said partition, they are cultivating their lands, but holdings were remained joint as the suit property was never partitioned by metes and bounds and the suit land shown in Schedule 'A' is a joint family property of the brothers, therefore, defendant No.3 could not have a right to alienate the suit land in favour of defendants No.1 and 2 and as such, the plaintiff is deprived of his right of pre-­emption provided under section 22 of the Hindu Succession Act, 1956 (hereinafter called as 'the Act of 1956') and therefore, sale deed dated 12.7.90 be declared void and defendant No.3 be directed to execute sale deed in his favour on payment of sale consideration as per market value and also prayed for permanent injunction.

(3.) Defendants No.1 and 2 have filed their written statement and denied the averments made in the plaint stating inter-­alia that the suit property has already been partitioned and it has rightly been sold by defendant No.3 in favour of defendants No.1 and 2 and the plaintiff has no right of preemption to purchase the suit property, as such, the suit deserves to be dismissed.