Decided on May 30,1973

Hirendra Nath Dutta Roy And Others Appellant
Rajendra Chandra Roy And Others Respondents


R.S. Bindra, J. - (1.) THE appellants Hirendra Nath Datta Roy and Dhirendra Nath Dutta Roy, real" brothers, are plaintiffs of the suit out of which this Letters Patent Appeal has arisen, and they were joint owners of a parcel of land in the town of Silchar along with Kshitish Chandra Datta Roy and Surjya Kanta Datta Roy, who were cited respectively as defendants Nos. 2 and 3, and one Akhil Chandra Datta Roy, who having died by the date of the suit his heirs were impleaded as defendants Nos. 4 to 8. The joint parcel of land was divided between the co -owners by the registered deed Ext. 1 dated 4 -3 -1936. Clause 'Ja' of that deed, which alone is relevant for our purposes, was translated by the learned Single Judge as under: - - If in future any of the co -sharers intends to sell his share then he would intimate his intention by a registered notice giving one month's time to the other co -sharers to purchase the land offered for sale at the prevailing market price and if within the time the other co -sharers intimate their intention to purchase the land from the proposed seller, then the land would be sold to the intending co -sharer. Without such a notice if the land is sold to others the sale would be invalid or void. If on receipt of such notice none of the co -sharers intimate their intention within the time the proposed seller can sell the land to others.
(2.) BY the sale -deed Ex. A, dated 21 -8 -1961, the defendant No. 2 Kshitish Chandra Datta Roy sold that part of the joint land to defendant No. 1 Rajendra Chandra Roy for a sum of Rs. 2,000.00 which had fallen to his share under the partition deed Ex. 1. It appears that before the partition the defendant No. 1 had taken that part of land on rent from all the co -sharers and had built a house thereon at his own expense. Soon after the partition in 1936 the defendant No. 1 attorned to the defendant No. 2 and. began paying rent to him. The two plaintiffs filed suit for possession by pre -emption of the land sold by defendant No. 2 to defendant No. 1 on the authority of Clause 'Ja' of the partition deed. They offered to pay the sum of Rs. 2,000.00 for which the defendant No. 1 had purchased the land.
(3.) THE suit was resisted by the vendee on divers grounds including the two that he had no knowledge about the partition deed between the parties or that the partition deed contained a pre -emption clause. He also happened to plead that he was a bona fide purchaser for value without notice of the pre -emption clause and as such the suit of the plaintiffs was mis -conceived.;

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