Decided on February 03,1983

ASHIK MIA Appellant


- (1.) This Rule arises at the instance of pre-emptor-decree-holder-petitioner Ashik Mia and is directed against Order No. 99 dated 31.7.80 passed in Misc. Case No. 4 of 1970 by the 2nd Court of the Munisif at Barasat.
(2.) The brief history of the case may now be stated as follows : Plot No. 414 is a bastu and appertains to Khatian No. 980, Mauza Prosadnagar J.L. No. 1 P.S. Naihati, District 24-Parganas, and measures 7 cents of land. The original owner was Harmuj Khan, opposite party No. 3. Out of 7 cents of land he sold 5 cents to the present petitioner by a registered Deed of Sale on 15th February, 1968. Thereafter he sold the remaining 2 cents to opposite parties nos. 1 and 2 who are represented by their guardian father, on the 6th of August, 1969, by executing a registered Deed of Sale. The second sale was made without any notice to the petitioner. Therefore, the petitioner filed an application under section 24 of the West Bengal Non-Agricultural Tenancy Act seeking to pre-empt the land sold to opposite parties nos.1 and 2. The pre-emption case was numbered as Misc. Case No. 4 of 1970, in the Second Court of the Munsif, Barasat and it ended in a compromise. Under the compromise deed the opposite parties nos. 1 and 2 agreed to deliver 2 cents of land which they have purchased to the petitioner and it was also stipulated that if they did not deliver possession to the petitioner, he could obtain possession by executing the compromise decree through Court. Inspite of this compromise, it is alleged, the opposite parties nos. 1 and 2 did not deliver possession of the said 2 cents of land. On the contrary, opposite Party No. 3 filed title Suit No.2 of 1972, raising a dispute that the transaction by a sale deed he executed in favour of opposite parties Nos. 1 and 2 was not a real sale, but in substance a loan transaction. The said the Munsif, at Barasat, and was dismissed. Thereafter, the petitioner put the compromise order into execution and in that execution case the opposite parties Nos. 1 and 2 filed objection under section 47 C.P.C. That application after being heard was dismissed. Thereafter opposite parties Nos. 1 and 2 through their mother filed Title Suit No. 35 of 1975, in the 2nd Court of Munsif at Barasat for declaration that the compromise decree was null and void. That suit was also dismissed by the learned Munsif. An appeal was preferred against that dismissal. But the said appeal was also dismissed.
(3.) The opposite parties Nos.1 and 2 then filed a petition in execution case stating that delivery of land had been already made to the decree-holder and execution case was thereby rendered infructuous. That petition was contested by the decree-holder who contended that no delivery of possession had been given. The learned Court below after hearing the parties dismissed the petition holding that possession of the land in dispute had not been delivered to the decree-holder.;

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