BIKASH DEY LASKAR Vs. NIPAPRIYA DAS

JUDGEMENT

(1.) This appeal is directed against the order dated 10.04.2015 passed by the Civil Judge, Karimganj in Misc. (J) Case No. 32/2013 arising out of T.S. No. 23/2013.

(2.) The appellants, as plaintiffs instituted a suit for declaration and reconveyance of the suit property claiming preferential right as well as permanent injunction. The case of the appellants/plaintiffs (hereinafter referred to as plaintiff) was that the property of Late Basanta Kumar Dey, who died in 1982 was inherited by his three sons, Bidhan Laskar, Biman Laskar, Bikash Laskar and the wife of said Sri Basanta Kumar Dey. Subsequently, the wife of Basanta Kumar Dey died and his entire property was enjoyed by the three sons jointly in equal share. In the year 1986, the property left by Basanta Kumar Dey was amicably partitioned amongst the co-sharers being the plaintiff No. 1, defendants No. 3 and 4, who are the legal heirs of Late Biman Dey Laskar and Bidhan Ch. Dey Laskar, who also died subsequently leaving his heirs, defendants No. 6 and 7. It was mentioned in the Partition Deed, that in case any of the co-sharer required to sell his respective share, it was agreed that the property shall be sold to the co-sharers at just and reasonable price, and in case, the co-sharers were unable to purchase the property, then there would be no bar in selling the property to any third party. Defendant Nos. 4 and 5 sold their share of the property in favour of the defendant Nos. 1 and 2. When the plaintiffs came to know about such sale of the property by the defendants No. 4 and 5 in favour of the defendants No. 1 and 2, the plaintiffs filed the suit for declaration that the Sale Deed in favour of the defendants No. 1 and 2 was fraudulent, illegal, void and inoperative and also for reconveyance of the property in favour of the plaintiffs. The appellants also filed a petition for temporary injunction in terms of the prayer of permanent injunction.

(3.) The case of the contesting defendants is that the plaintiff No. 1 had expressed his inability to purchase the suit land and had given a written no-objection to that effect. The defendant Nos. 3 and 4 by executing registered Sale Deed sold the suit land to the defendant Nos. 1 and 2 and delivered possession to them. It has also been contended that the plaintiff No. 2 was neither a party to the Partition Deed nor has she any right or title over the suit land and hence there was mis-joinder of party to the suit. Further pleaded case of the said defendants is that after partition, all the co-sharers have become absolute owners of their respective shares of property as per the registered deed of partition and the defendant Nos. 4 and 5 sold their own property to the defendant Nos. 1 and 2, as the other co-sharers expressed their inability to purchase the land. The defendant Nos. 1 and 2 have been possessing the suit land after having purchased the same for valuable consideration and the plaintiffs have no right or title over the suit land, and therefore, the suit and injunction petition of the plaintiffs was required to be dismissed with compensatory cost. The defendants further contended that prima facie case as well as irreparable loss and balance of convenience were not in favour of granting injunction.