BIMAL CHANDRA BEHARA Vs. SASADHAR GHOSH

JUDGEMENT

(1.) THIS Second Miscellaneous Appeal which is heard along with an application under Section 115 of the Code of civil Procedure in the alternative, is directed against an appellate judgment and order dated 6th April, 1987 passed by the learned Additional District judge 4th Court, Midnapore in Misc. Appeal No 109 of 1986 which confirmed in turn the order dated 28th June, 1986 passed by the learned assistant District Judge, 2nd Court Midnapore in Title Suit No 1 of 1976. The learned Assistant District Judge. 2nd Court. Midnapore held that the application for pre-emption of the suit property filed under Section 4 of the partition Act by the defendant No 2 appellant in respect of that undivided portion of the suit property which stood transferred to the plaintiff opposite party, should be dismissed. This application was obviously filed after the preliminary decree in a suit for partition. The claim of the defendant No 2 petitioner before the learned Assistant District Judge 2nd Court. Midnapore was to the effect that the suit property an undivided family dwelling house in which the defendant No 2, Bimal Chandra Behara laid his claim as a member of the family. The plaintiff, Sashadhar Ghosh who is admittedly a stranger purchaser by filling written objections contested the claim for pre-emption. The suit was decreed under preliminary form on 22. 6. 81 and when the suit was about to reach the stage of final decree, this application for pre-emption was filed. Admittedly the position is that the plaintiff has been found to be a co-sharer of the suit property by purchase to the extent of 12 annas share and the remaining 4 annas belong to defendant No 2 appellant, Bimal Chandra Behara. Originally the suit property belonged to one Hepa @ Nepa Behara and on his death, the same devolved on his sons Sajani and Rajani. Rajani died before the commencement of the Hindu Succession Act, 1956 leaving behind his son bhusan and his daughter Sindhu Bala. Rabi is the son of Sindhu Bala. Bhusan died living no wife or child and so his interest sr. The suit property devolved on Rabi his sister's son. Kalipada (defendant No i) and Subai inherited the share of Sajani in equal shares having l/4th undivided share each. The share of Subal devolved on his death of his widow Lexmi Rani and daughter Dall. During revisional settlement operation Kalipada being the eldest male member and karta of the family used to look after the R. S. operation and taking advantage of the same, Kalipada got the suit property recorded in his name to the extent of 16 annas in the R. S. Record of rights. Rabi, Laxmi Rani and Dall who inherited undivided 12 annas interest in the suit property sold the said property to the plaintiff by a registered sale deed dated 16. 8. 74. Accordingly the plaintiff filed the suit for partition claiming 12 annas share in the suit property. It is needless to go in to the defence of the present defendant No 2 appellant about Sajani and Bhusan having lost their interest by way of abandonment and defendant No 1 Kalipada having effected settlement of the suit property to one Satyacharan Das by a registered sale deed dated 31. 1. 62 and satyacharan being placed in possession of the same. Satyacharan again transferred the suit property to one Purna Chandra Sahoo and thereafter bimal, the son of Kalipada purchased the same subsequently from Purna chandra Sahoo. The case of the defendant No 2, Bimal is that he is the exclusive owner of the of the suit property, which was negatived by the trial court. The lower appellate court also confirmed the said finding by way of a regular appeal. The case of Bimal in the petition for pre-emption is that the property in suit is an undivided family dwelling house and he is the exclusive owner of the same. The mud-build thatched house standing on the house property was constructed by Kalipada, his father.

(2.) THE trial court adverted to essential ingredients of Section 4 of the partition Act :

(3.) THE learned trial judge, however, held that if the dwelling house in question is not owned by an undivided family, even a stranger who is a transferee can ask for his share by partition. The trial judge following the decision, in 75 CWN 195 in the case of Surendra Nath us. Ram Chandra, was of the opinion that the proper stage for making an application under section 4 of the Partition Act would be at the stage of Final decree for partition when by way of appointment of a commissioner, partition by metes and bounds will be made. He also held following the decision in the case of Satyanarayan Chakraborty vs. Biswanath Pal reported in 74 CWN 871 that an application under Section 4 of the Partition Act is maintainable even at the stage of final decree of the suit provided the stranger purchaser has not obtained possession of his dwelling house by way of his allotment in execution of the decree. He was farther of the view that until the dwelling house is completely alienated to a stranger it is still an undivided dwelling house within the meaning of Section 4 of Partition Act. The trial court, however, was of the view that it cannot be said that it retained the character of an undivided family bouse. The father of the present petitioner, Kalipada transferred the suit property by a registered sale deed dated 31. 1. 62 to Satyacharan Das and on delivery of Khas possession to him and since his purchase, Satyacharan was in possession of the suit property. Satyacharan while in possession, sold the suit property by a registered Kobala and delivered his Khas possession in favour of Purna chandra Sahoo while in possession Purna again sold the suit property to bimal, the present appellant petitioner by a registered sale deed dated 8. 7. 68 and he delivered the Khas possession in favour of Bimal.