BULU SARKHEL Vs. KALI PRASAD BASU

JUDGEMENT

(1.) These appeals were taken up for hearing analogously as they arose out of a common judgment and decree dated 23 rd February, 1998 passed by learned Additional District Judge, 5 th Court at Alipore disposing Appeal No.321 of 1995, 338 of 1992, 382 of 1995 and 72 of 1996.

(2.) Kali Prasad Basu and Goutam Basu filed Title Suit No.79 of 1990 alleging that Manorama Bose, mother of present plaintiffs and defendant No.1 4 was owner of a two storeyed building at 5/12 A Riffle Range Road, P. S. Karia and that on her death on 19 th of October, 1974 plaintiffs and defendant Nos. 1 / 4 inherited said property each having 1/6 th share in said undivided two storeyed building having four flats, two in each row. Plaintiffs and defendant No.3 were residing in the premises. The northern flat in the first floor was constructed by the defendant No.1 with consent of other co-sharers and started to reside there with his family members. On 5 th of September, 1976 defendant No.1 produced a typed paper for signature of other brothers and sisters for the proposal of construction of said flat by defendant No.1 for accommodation of his family members. Other co-sharers signed in said paper in good faith but later on defendant No.1 illegally sold out said flat to an outsider (defendant No.5) though said flat was an accretion to said joint property. The defendant No.1 had no right to sell out a part of the joint dwelling house to a stranger (defendant No.5) as there was oral agreement between the co-sharers that before selling to an outsider by a co-sharer, other co-sharers should be offered first for purchase. Said flat was sold showing consideration of Rs.1,10,000/-. Accordingly plaintiffs filed said suit for partition as well as for purchase of the flat sold to an outsider (defendant No.5) by invoking Section 4 of the Partition Act.

(3.) The defendant No.2 filed a written statement adopting the plaint case.