Decided on July 08,1970

Sri Surendra Nath Achar And Anr. Appellant
Sri Ram Chandra Hazra And Ors. Respondents


A.C. Roy, J. - (1.) This appeal is directed against a judgment and preliminary decree in a partition suit in which, while passing the preliminary decree for partition, the learned Subordinate Judge has also directed that defendants shall be entitled to preempt plaintiff's share under Sec. 4 of Partition Act. The plaintiff who instituted the suit and obtained the decree for partition has preferred this appeal assailing that part of the decree by which defendants' right to pre -empt plaintiff's share has been declared. Property sought to be partitioned in the suit is the dwelling house with its appurtenances, curtilage etc., comprised in Plot No. 747 having an area of 29 decimals appertaining to interest No. 126 and Plot No. 7471945 having an area of 38 decimals appertaining to interest No. 140 of Teghari Mouza in Midnapore district. That property originally belonged to Natabar Hazra and on his death it was inherited by his two sons Nitai and Chaitanya in equal shares. Chaitanya died leaving his widow Prasanna -moyee as his sole heir; Nitai died leaving two sons Dharani and Naren (since deceased). Dharani died leaving a widow Raimoni and son Kalipada.
(2.) Prasannamoyee who had inherited 8 annas share of Chaitanya sold that share of the property to the plaintiffs by a Kobala dated 9th Barsakh 1353 B.S. corresponding to 22nd April 1946 and gave up possession in their favour of the hut in which she was living at the time of sale. Since then the plaintiffs are in possession of ejmali property but they did not get possession of entire 8 annas share purchased by them and there was inconvenience of joint possession. Amicable partition was demanded by a registered notice but partition was refused by defendants. Hence present suit was instituted by the plaintiffs claiming partition of 8 annas share by metes and bounds.
(3.) The geneological table relevant for the suit is mentioned below: Defendants Nos. 1 and 2 Naren and Kalipada contested the suit by filing joint written statement. During the pendency of the suit Naren died and his heirs have been substituted as plaintiffs in his place. They have adopted the written statement filed by Defendant No. 1.;

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