HARA CHANDRA DAS Vs. BHOLANATH DAS

JUDGEMENT

(1.) This plaintiffs in the suit out of which this appeal has arisen, sought to exercise right of pre-emption in respect of the property described in the plaint, against the defendants Nos. 1, 2 and 3 in the suit, as purchasers of the property in question from the defendants Nos. 4 and 5 by a kabala, Ex. B in the case dated Bhadra 25, 1335. The plaintiffs and the defendants Nos. 4 and 5 were admittedly co-sharers in regard to the property in dispute and the right of pre- emption sought to be exercised in the suit was right to a certain share in joint property, owned by the plaintiffs and the defendants Nos. 4 and 5, the vendors of the defendants Nos. 1, 2 and 3 in the suit. The claim to the exercise of the right of pre-emption as made by the plaintiffs was resisted by the defendants Nos. 1, 2 and 3; the defendants Nos. 4 and 5 supported the case by these defendants, by the written statement filed by them but they did not appear at the hearing of the suit,

(2.) The plaintiffs claims for pre-emption as made in the suit was dismissed by the Court of first instance on the ground that the suit was barred by limitation. On appeal by the plaintiffs, the learned District Judge of Sylhet, reversed the decision of the trial Court on the question of limitation; according to the Judge, the suit was not b aired by limitation. The Court of Appeal below, however, came to the decision that the kabala, Ex. B in the case, had never been legally registered owing to the fact that the Sub-Registrar registering the same had not been vested with requisite powers. There was no sale in respect of the property covered by the kabala Ex. 13, and it followed from that that the plaintiffs had no cause of action. Although the reasons were different from those recorded by the Subordinate Judge in the Court of first instance, the conclusion of the District Judge in the Court of Appeal below, was the same as that at which the trial Court had arrived, namely that the plaintiffs suit should be dismissed. The defendants Nos. 1 to 3 appealed to this Court; and the appeal is directed, as stated in the Memorandum of Appeal: against a finding of the lower Appellate Court, although, the appeal before that Court was dismissed, and the appellants were respondents in that appeal.

(3.) There were cross-objections preferred by the plaintiffs-respondents in the appeal to this Court.