SUNIL KUMAR MUKHOPADHAYA Vs. PROVASH CHANDRA MAJUMDAR

JUDGEMENT

(1.) This appeal is by the plaintiffs and it arises out of a suit for partition, in which the plaintiffs made a claim for pre-emption under Section 4 of the Partition Act.

(2.) The suit was instituted on March 20, 1957. The plaint was a simple plaint for partition on the allegation inter alia that the plaintiffs had l/3rd undivided share in the disputed property. Within two days, namely, on March 22, 1957, the plaintiffs applied for a temporary injunction to restrain the defendant from erecting structures on the suit land or changing its character and, in the said application, a reference was made to the plaintiffs' claim for pre-emption, or right in that behalf, -- under Section 4 of the Partition Act upon the ground that the defendant was a stranger purchaser, although he had purchased the major share, namely, 2/3rds, and, on the implication, though not very expressly stated, that the disputed property comprised the ancestral dwelling house of the plaintiffs' family. Thereafter, the suit proceeded for some time and, eventually, on September 22, 1959, there was a specific application for pre-emption under Section 4 of the Partition Act, mentioning all the requirements under the said section.

(3.) The learned Trial Judge, after finding that the plaintiffs had l/3rd share in the disputed property and the defendant the remaining 2/3rds, made a preliminary decree for partition, and, upon the plaintiffs' above application under Section 4 of the Partition Act, came to the conclusion that, having regard to the nature of the disputed property and the circumstances of this case, it could be treated as coming sufficiently within the expression "dwelling house belonging to undivided family", as used in the said section, and, accordingly, the plaintiffs were entitled to pre-emption under the said statutory provision. In that view, he allowed the plaintiffs' said claim for pre-emption.