- (1.) The defendants are the appellants against the impugned judgment of concurrence.
(2.) Respondent as the plaintiff filed a title suit being Title Suit No.47 of 1991 in the Court of learned Assistant District Judge, Baruipur 24 Parganas (S) praying for a preliminary decree of partition as well as a decree of pre-emption under Section 4 of the Partition Act, 1893. The plaint case in short is that the suit property and non-suit properties originally belonged to one Satya Prasad Ghosh and others. They partitioned their properties through a partition deed dated 21 st September, 1930. AS per said partition deed, the suit properties and some other properties were allotted to Manmotho Nath Ghosh and another. Manmotho Nath Ghosh executed a will dated 29 th November, 1931 appointing Satyendra Kumar Ghosh his executor. Sudhir Kumar Ghosh was the beneficiary under said will, which was duly probated. As per partition deed dated 21 st September, 1930 and the will dated 29 th November, 1931 the suit properties and non-suit properties devolved upon Sudhir Kumar Ghosh, father of the plaintiff Samarendra Kumar Ghosh and defendant No.1 Ramendra Nath Ghosh. After death of their father, plaintiff and defendant No.1 used to reside in their working place but kept the suit dwelling house as a joint propperty.
(3.) The suit property was a joint undivided dwelling house of the plaintiff and the defendant No.1. They appointed one Chapal Kumar Ghosh as caretaker for looking after the suit dwelling house. Defendant No.2 to 4 are the heirs of Chapal Kuamar Ghosh. Said Chapal Kumar Ghosh along with his family members used to reside in the suit property. Later on, defendant No.1 sold out his undivided share in said family dwelling house (bastu) to defendant No.2 to 4 who were nothing but strangers to the family. As defendant No.1 did not agree to partition the suit property and rather sold out his share of undivided dwelling house to the strangers the plaintiff filed this suit praying for a decree of partition in the preliminary form and also for a decree of pre-emption for purchase of the sold out share of the undivided dwelling house from the defendant No.2 to 4.;