GOPAL PRASAD Vs. BAUSHIDHAR SINGH

JUDGEMENT

(1.) This civil revision application is directed against the order dated 27-3-99 passed by Sub-Judge III, Daltonganj in Partition Suit No. 13/93, whereby he has rejected the application filed by the plaintiff-petitioner under Section 22 of the Hindu Succession Act.

(2.) The plaintiff-petitioner instituted the aforementioned suit for partition of the joint property impleading defendants Nos. 1 to 13 but subsequently the defendant No. 14, namely, the sister of the plaintiff was also made party in the suit. The defendant Nos. 12 and 13 were made defendants, who were transferee from one of the co-sharers. It appears that during the pendency of the suit the pro forma opposite parties desired to dispose of their interest in the property and finally executed two sale deeds in favour of defendant No. 12, who figures as principal opposite party No. 1. The plaintiff, therefore, made an application under Section 22 of the Hindu Succession Act, 1946 (hereinafter referred to as 'the said Act') to exercise his preferential right to acquire the property. The said application was opposed by the defendant No. 12 by filing a rejoinder. The Court below, after hearing the parties, rejected the application in terms of the order dated 27-3-99 holding that in exercise of right of pre-emption under the provisions of the said Act the petitioner may bring a regular suit as such question cannot be decided in the instant suit. Hence this revision application.

(3.) Mr. K. K. Sahay, learned counsel appearing on behalf of the petitioner, assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that the Court below failed to exercise jurisdiction so vested in it by law. According to the learned counsel, the question with regard to preferential right of a party to a property has to be decided in that suit in the event any such application under Section 22 of the said Act is filed. Learned counsel, in this connection, relied upon the decision in the case of Bhola Nath Rastogi v. Santosh Prakash Arya, AIR 1975 Patna 336 and Ganesh Chandra Pradhan v. Rukmani Mohanti, AIR 1971 Orissa 65.