DHOBEI ROUT Vs. PAHALI ROUT

JUDGEMENT

(1.) The appellant and respondent No. 3 (plaintiffs Nos. 1 and 2 respectively) filed O.S. No. 78/459 of 1981/79-I of the Court of Addl. Sub-Judge, Puri against the present respondents 1 and 2 (defendants Nos. 1 and 2 respectively in the suit) for enforcement of their preferential right to purchase the suit property as conferred by Section 22 of the Hindu Succession Act, for direction upon respondent No. 1 to reconvey the suit property to the plaintiffs on receipt of consideration money and other ancillary reliefs. Trial Court decreed the suit. The present respondents 1 and 2 preferred Title Appeal No. 3/52 of 1985/83 of the Court of Second Addl. District Judge, Puri. The lower appellate Court set aside the judgment and decree of the trial Court and dismissed the suit. Plaintiff No. 1 has filed this second appeal.

(2.) Admittedly Kirtan Rout (father of appellant and respondents 2 and 3) was the original owner of different properties including the suit property. On his death the properties of Kirtan devolved upon the appellant and the respondents 2 and 3 as Class-I heirs. On December 18, 1978 a partition deed (Ext. A) was executed among the co-heirs partitioning the properties inherited by them from Kirtan. By a registered deed of sale dated July 31, 1979 respondent No. 2 sold the suit property to respondent No. 1. On September 24, 1979 the present suit was instituted alleging that the suit property was sold in violation of the preferential right conferred by Section 22(1) of the Hindu Succession Act and for enforcement of such preferential right.

(3.) In the suit the present appellant and respondent No. 3 alleged that although a deed of partition was executed, but the same was not acted upon and they continued to be in possession of the suit properties. Respondents 1 and 2 asserted that the properties were partitioned by metes and bounds and the suit land among others was allotted to the share of respondent No. 2. According to the defence case there being completed partition among the co-heirs the right u/S. 22(1) of the Hindu Succession Act was no longer available on the date of the impugned sale.