BIRENDRA NATH HALDER Vs. HARIPADA HALDER

JUDGEMENT

(1.) This Court has heard the Learned Advocates for the respective parties. The plaintiffs/appellants along with others filed title suit No.104 of 2000 against the defendants/respondents and such suit was placed before the learned Civil Judge (Junior Division) 2nd Court at Baruipore. The plaintiffs prayed for a decree for preemption under Section 22 of the Hindu Succession Act, 1956. The case of the plaintiffs, briefly, is that the suit property originally belonged to Jitendra Nath Halder, and Rakhal Chandra Halder, each having half share in such property and their names were recorded in the R. S. record of right.

(2.) The plaintiffs further case was that after the death of Jitendra Nath Halder his share was inherited by his six sons and three daughters in equal shares and after the death of Rakhal Chandra Halder his share was inherited by his three sons (Parbati, Pashupati and Biren) one daughter (Subhadra) and widow (Chamatkari); after the death of Parbati, his share was inherited by his widow (Bisakha) and two daughters (Kajal and Basanti); Kajal and Basanti, the two daughters of parbati, transferred their share in the suit property in favour of the defendants; Pashupati, one of the sons of Rakhal Chandra Halder, also transferred his share in the suit property in favour of the defendants. Plaintiff No.7 (Biren, son of Rakhal Chandra Halder) and plaintiff No.8 (Bisakha, widow of Parbati) pleaded that they have acquired a right of preemption under Section 22 of the Hindu Succession Act. According to the plaintiffs, the suit property is an undivided property of the plaintiffs and their co-sharers. It will appear from the impugned judgment that even though the suit was originally filed by eight plaintiffs, subsequently, by an order dated 11.1.2001 the Learned Trial Court expunged the names of the plaintiffs No.1 to 6 and, consequently, only two plaintiffs, that is plaintiff No.7 and 8, proceeded with the suit. It will also appear from the said impugned judgment that the plaintiffs prayed for preemption only in respect of their title deed executed on 9.1.1998. The plaintiffs pleaded that the defendants threatened to make constructions upon the undivided Bastu land and also threatened to catch fish from the pond and the plaintiffs were compelled to file title suit No.23 of 1998 in the Court of the Learned 3rd Civil Judge, Junior Division (Baruipore) which was subsequently transferred to the Court of the Learned 2nd Civil Judge Junior Division (Baruipore) and was renumbered as title suit No.104 of 2000.

(3.) The defendants filed a written statement denying the material allegations made in the plaint and contended inter alia, that the defendants are in possession of a portion of the suit property even prior to their purchase of the same and there is no dwelling house in the suit property. It was further contended in the written statement that Basanti Haldar is not a first class heir. The said suit came up for hearing and the Learned Trial Court by its judgment and decree dated 31st January, 2004 decreed the said suit on contest against the defendant No.1 and ex parte against the defendant No.2 by declaring that the plaintiffs are entitled to a decree for preemption under Section 22 of the Hindu Succession Act, 1956 in respect of the suit property. The plaintiffs were directed to deposit the consideration money as mentioned in the sale-deed in question in the name of the defendants in Court within a stipulated period of time and the defendants were directed to execute an appropriate sale-deed in favour of the plaintiffs/appellants within a stipulated period of time and in default the plaintiffs were given liberty to take steps for execution of such saledeed through Court.