BIJAN KUMAR GHOSH Vs. SWAPAN MONDAL

JUDGEMENT

(1.) This appeal has been preferred against Judgement and order dtd. 24/4/2014 passed by Learned Additional District Judge, 5th court Howrah, in Title Appeal no 152 of 2012, which was preferred against judgement and decree dtd. 28/8/2012 passed by Civil Judge (Sr.Division) 2nd court, Howrah in Title Suit no 25 of 1998.

(2.) Brief background of the present case needs to be stated at the outset. The property in dispute comprising of dwelling house over land measuring about 2 katha 7 chattak 20 sq ft, known as 6/2, Asutosh Mukherjee Lane, originally belonged to one Bhola Nath Majilya who during his lifetime executed a registered deed of 'Nirupan Patra' on 10/7/1985, by which he settled the said dwelling house in favour of his three sons namely, Subuddhi Bhajan Majilya, Harekrishna Majilya and Debnarayan Majilya in equal share. Thereafter Subuddhi Bhajan mortgaged his 1/3rd share in the said premises in favour of respondent no. 1 herein, Swapan Mandal by executing an ostensible deed of sale and simultaneously an agreement of reconveyance was also executed on the same date. Subsequently on 16/9/1998, said respondent no. 1 Swapan Mandal reconveyed the property by executing a registered deed of Re-conveyance in favour of Subuddhi. Thereafter on 11/4/1997, aforesaid Harekrishna and Debnarayan sold their 2/3rd share of the said premises in favour of appellant herein, Bijon Ghosh. On 26/2/1998 appellant/Bijon filed Title Suit no. 25 of 1998 against said Subuddhi Bhajan and Swapan for partition and injunction relating to aforesaid suit building. During pendency of the said partition suit, Subuddhi Bhajan i.e. defendant no 2 of that suit filed one Misc. case being 5 of 2000 under Sec. 4 of the Partition Act 1893, seeking pre-emption of the transferred portion to the stranger purchaser i.e. appellant herein.

(3.) Learned Trial Court heard the partition suit as well as aforesaid Misc. case seeking Pre-emption analogously and by the judgement and decree dtd. 28/8/2012 was pleased to dismiss aforesaid Misc. case no. 5 of 2000 on the ground of limitation relying upon Sec. 97 of the Limitation Act and decreed the partition suit being Title Suit no. 25 of 1998 in preliminary form.