- (1.) This is an application under Article 227 of the Constitution of India challenging order No.5 dated 6th of October, 2010 passed by learned Additional District Judge, in-charge, First Fast Track Court at Sealdah, District 24 Parganas (South) in Misc. Appeal No.82 of 2010 arising out of order dated 13th of September, 2010 passed in Misc. Case No.25 of 2006 which in turn arose out of Title Execution Case No.3 of 2004.
(2.) This application has a very checkered background which may be summarized as follows:- The present petitioner along with her mother as plaintiffs filed a suit for partition being Title Suit No. 4 of 1989 in respect of premises No.14 C, Shambhu Babu Lane, P. S. Entally, Calcutta 14 wherein the present O. P. was described as one of the defendants being a stranger purchaser of 1/9th share of the dwelling house from another co-sharer. In that partition suit the petitioner plaintiff prayed for a decree of preemption under Section 4 of the Partition Act against the O. P. defendant being a stranger purchaser. After contested hearing said suit was declared in preliminary form by a judgment dated 27th of August, 1992 by learned Assistant District Judge, 9th Court at Alipore declaring 7/9th share of the petitioner plaintiff with mother Debi Rani Paul and undivided 1/9th share of Sujit Kumar Paul, Smt. Gita Paul, Smt. Chhabi Ghosh and Smt. Rubi Ghosh and undivided 1/9th share of the O. P. defendant. However, learned court declined to pass any order of preemption under Section 4 of the Partition Act observing that O. P. defendant was not a stranger to the family of the petitioner plaintiff.
(3.) Being aggrieved the plaintiff and her mother preferred First Appeal being F. A. No.152 of 1993 in the Hon'ble High Court at Calcutta. The High Court allowed the appeal in part permitting the petitioner to buy up share of the O. P. defendant to the extent of undivided 1/9th share under Section 4 of the Partition Act by declaring the defendant as a stranger purchaser of undivided 1/9th share of co-sharer Bivabati Paul, by a judgment dated 11th of September, 1998.;