MADHAV MOHAN GHOSH Vs. GHANTESWAR GHOSH

JUDGEMENT

(1.) THIS Revisional application is directed against order no. 148 dated 13. 8. 1987 passed by the learned Second Assistant District Judge, Howrah, in Misc. Case No. 35 of 1986, whereby the learned assistant District Judge dismissed the application under section 4 of the Partition Act, made on behalf of the present petitioner, inter alia, upon a view that after passing of a final decree; in a partition suit the right of pre-emption " under the said Section does not remain available.

(2.) THE sister of the opposite party no. 1 filed title suit No. 49 of 1960 for partition against the predecessors-in-interest of the present' petitioner and opposite parties and the schedule of the properties involved in the suit included the dwelling house of the joint family of the contesting parties being premises No. 6, Rash Behari Ghoshal Lane, Howrah. That suit ended in a final partition decree dated 31st August, 1971 and a share therein comprising 4 cottahs 9 chittaks and 36 sq. ft. with bath and privy had been exclusively alotted in favour of the plaintiff Radharani. That after making attempts for execution of the said decree, on or about 8th October, 1979 the plaintiff-decree holder transferred her right, title and interest in the suit property to the opposite party no. 1, her brother, and the said opposite party no. 1 put the said decree into execution in Title execution case no. 5 of 1981 wherein the present petitioner preferred an objection under- Section 47 of the Code of civil Procedure. During the pendency of the said Execution case, on or about 12th [december, 1986 the present petitioner filed an application under Section 4 of the partition Act for pre-empting the transfer made by radharani in favour of Ghanteswar, the opposite party no. 1, and such application was registered and numbered as Misc. Case No. 35 of 1986 of the Second Court of the learned Assistant District Judge, Howrah, which had ended with the impugned order.

(3.) THE short question which arises for consideration ' in the present Revisional proceeding is about the property of the ground on which the learned Assistant District Judge rejected the application for pre-emption. Mr. Haradhan banerjee, appearing in support of the Revisional application, and Mr. Gopal Mukherjee, appearing on behalf of the contesting opposite party, have cited a large number of decisions in support of their respective contentions for and against the impugned judgment. Upon consideration of the submissions" and the decisions cited by the -two learned advocates, it appears to us that the view taken by the learned Assistant District Judge can not be upheld.