BHOLANATH KARMAKAR Vs. SAILENDRA NATH PRAMANIK

JUDGEMENT

(1.) This is an appeal from an appellate decree. The subject matter of challenge is the judgment and decree dated June 19, 1978, passed by the learned Subordinate Judge, Midnapore in Title Appeal No. 300 of 1975 reversing those dated Aug. 2. 1975, passed by the learned Munsif. Ghatal in Title. Suit No. 125 of 1972. That was a suit for partition and the defendant is the appellant before this court. The only question which has been agitated in this appeal before us is "as to whether the plaintiff is entitled to claim pre-emption under Section 4 of the Partition Act when the stranger purchaser has neither sued for partition nor has prayed for partition and separate allotment of the share purchased by him.

(2.) The suit property consists of three plots being Dag Nos. 2010, 2011 of Khatian No. 676 and Dag No. 2012 of Khatian No. 897 of Mouza Kharar set out in Schedules Ka and Kha to the plaint. On the settlement records all those plots are non-agricultural in nature and while plot No. 2011 is the bastu or homestead plots Nos. 2010 and 2012 ore patit or waste and adjoining the said bastu. The suit property admittedly was inherited by three brothers Ram Tarak. Rammoy and Shyamacharan from their father Churamoni. On the concurrent findings of the two courts below while plaintiff, Sailendra one of three sons of Rammoy had inherited 1/9th share in the suit land and l/3rd share in the structures (Schedule Ga) built by his father Rammoy, the defendant, who is a stranger to the family of the plaintiff has by purchase acquired the balance 8/9 share in the suit land and 2/3 share in the structures. This has been: found concurrently by the two courts below and that has not been challenged before us in this second appeal.

(3.) According to the plaintiff his father Rammoy and uncle Shyamacharan had to leave their original homestead and they built a mud-walled house on Dag No. 2011 about 40 years back and lived there. Later Shyamacharan left the place and settled in Calcutta. When that mud-walled house fell down plaintiff's father Rammoy built a two roomed housed on the said plot, lived there and died and after his death, plaintiff and his brothers continued to live there until they for their professional work viz., goldsmithy went over to Puri, Plaintiff's case further was that he went over to Puri about 5 years prior to the suit. The plain-tiff claimed the house situate on plot No. 2011 to be the family dwelling house and the other two Plots constitute a part thereof, since the other co-sharers sold off their share to the defendant, the defendant took possession thereof and enclosed the entire area by a boundary wall built by him. Hence the plaintiff instituted the suit for declaration of his title as a co-sharer and partition along with a prayer for pre-emption under Section 4 of the Partition Act.