HARADHONE HALDAR Vs. USHA CHARAN KARMAKAR

JUDGEMENT

(1.) This appeal is directed against a concurrent decree of the two courts below, allowing the plaintiff-respondent's alternative claim for pre-emption under Section 4, Partition Act.

(2.) The suit properties (C. S. plot No Section 113, 114 and 116) which constitute the undivided family dwelling house of the plaintiff and his brother Kangsari Mohan Karmakar, the predecessor of respondents Nos. 2 and 3, belonged to them in equal moiety shares. In 1930, the present defendant-appellant (who was a stranger to the family) auction-purchased Kangsari's . half share of the suit properties. He got symbolical possession sometime in April, 1930, but he failed to get actual possession. Thereupon, he brought a suit (Title Suit No. 55 of 1931) against Kangsari and the present plaintiff for 'inter alia' joint possession of the suit properties along with the present plaintiff and, having recovered an 'ex parte' decree on 30-11-1931, he took joint possession by removing the huts of Kangsari, sometime in 1946. In the meantime, the present plaintiff had instituted a suit (Title Suit No, 280 of 1945) for the setting aside of the above 'ex parte' decree but it was unsuccessful up to the appellate Court which dismissed his appeal on 1-3-1947. He then brought the present suit on 28-2-1948.

(3.) In the suit, the plaintiff's prayers were for declaration that the present appellant who was the principal defendant (No. 1) was not entitled to have joint possession of the suit properties and for an appropriate injunction and, alternatively, for pre-emption of Kangsari's half share, purchased by this stranger defendant (No. 1), under Section 4, Partition Act in the course of a partition proceeding,