HARENDRA NATH MUKHARJEE Vs. SHYAM SUNDER KUER

JUDGEMENT

(1.) This appeal by defendant No. 3 of a partition suit arises out of an application filed by him under Section 47 of the Code of Civil Procedure.

(2.) Facts giving rise to this appeal, briefly stated, are as follows:-- Respondent No. 2 instituted Title Partition Suit No. 35 of 1954 in the court of the Subordinate Judge I, Patna against his brothers the appellant and defendants 1 and 2 for partition of the family property. A preliminary decree for partition was passed on 3-5-1955. The final decree was passed on 10-9-1959. On 18-9-1959, Execution Case No. 73 of 1959 was filed by respondent No. 2 for taking delivery of possession in accordance with the final decree. On 4-2-1962 he executed a sale deed in favour of Shyam Sunder Kuer, respondent No. 1 in respect of two rooms and 2 Kathas of land out of the family property which had been allotted to his share by the final decree. The appellant then filed before the executing court the petition from which this appeal has arisen on 13-9-1963 praying that he be allowed to purchase back the share of respondent No. 2 which he had sold to respondent No. 1. This prayer of the appellant was opposed by respondent No. 1.

(3.) The learned Subordinate Judge who heard the parties on merit and demerit of the said application dated 13-9-1963 by the appellant rejected it. The grounds which the learned Subordinate Judge has given for rejecting the aforesaid prayer of Defendant No. 3 were: