TARAPADA MISHRA Vs. HARE KRISHNA DAS

JUDGEMENT

(1.) These two appeals arise out of two proceedings for enforcement of two pre-emption orders. The pre-emptor is the appellant before us and the facts relevant for our present enquiry are as follows:

(2.) A non-agricultural holding belonged to three persons, viz., Suresh, Ramesh and Gopal, each having an undivided one-third share in the said property. On January 10, 1944, Suresh's one-third share passed to one Dwarka Nath Pal in execution of a decree. Possession was taken by this auction-purchaser on May 9, 1944. On July 15, 1944, the present appellant Tarapada Mishra purchased the said share from Dwarka's heirs' and legal representatives by a registered kobala. On September 20, 1950, the respondent Hare Krishna Das purchased Gopal's undivided one-third share by a kobala which was registered on September 21, 1950, and on the same date, namely, September 21, 1950, Hare Krishna's minor son Saradindu, who is the respondent in the other appeal (No. 9 of 1955), purchased Ramesh's undivided one-third share by a kobala, registered on the same date. Thereafter, Tarapada, the present appellant, made two applications for pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act of 1949 for pre-empting the above two sales in favour of the respondents Harekrishna and Saradindu. The pre-emption applications were allowed by the learned Subordinate Judge on November 2, 1951, and delivery of possession was given to the pre-emptor under Sub-section (8) of that section, except with regard to the disputed dwelling house which is the subject-matter of the present proceedings. After the said delivery of possession, the present respondents applied under Section 47 of the Code of Civil Procedure seeking to resist the appellant's claim for delivery of possession in respect of the disputed dwelling house by setting up a title thereto from Suresh whose share was not the subject-matter of the pre-emption proceedings. The respondents' claim was resisted by the appellant who set up exclusive title to the disputed dwelling house in favour of the persons whose shares were pre-empted by him in the pre-emption proceedings. These exclusive titles of the respective parties mutually conflicting, were set up under a partition but their cases of allotment with respect to the disputed dwelling house were different in that, according to the respondents, it was allotted to Suresh while, according to the appellant, it was allotted to the other two persons Ramesh and Gopal.

(3.) The learned Subordinate Judge refused to go into this disputed question of title in the present proceedings which were really for enforcement of the pre-emption orders and, in that view, he dismissed the respondents' objections.