ABANTI KUMAR SHEET Vs. MR. SK. YEAR ALL AND OTHERS
LAWS(CAL)-1996-12-41
HIGH COURT OF CALCUTTA
Decided on December 06,1996

ABANTI KUMAR SHEET Appellant
VERSUS
MR. SK. YEAR ALL AND OTHERS Respondents


Referred Judgements :-

KALIPADA GHOSH VS. TULSIDAS DUTT [REFERRED TO]


JUDGEMENT

Basudeva Panigrahi, J. - (1.)This revision is directed against the order dated 31st Jan., 1995 passed by the Additional District Judge, 4th Court, Midnapore in Misc. Appeal No. 8/93 affirming the order dated 28th April, 1992 passed by the Assistant District Judge, Contai in J. Misc. Case No. 9/91 rejecting the application under Sec. 4 of the Partition Act.
(2.)The Opposite Party No. 1 S.k. Year Ali lodged a partition suit No. T.S. 83/88 in the 2nd Court of the Assistant District Judge, Midnapore against the petitioners and other proforma opposite parties. The suit after having transferred to the Court of the Assistant District Judge, Contia for disposal was re- numbered as T.S. No. 15 of 1990. In the said suit, the Plot Nos. 409/525 appertaining to Khatian Nos. 86, 447 and Khatian No. 77 were included. the Trial Court passed the preliminary on contest against the petitioners and other opposite parties declaring the share of the opposite parties No. 1. Thereafter, pursuant to the said preliminary decree the opposite party No. 1 filed an application for passing final decree. During the pendency of the final decree application, the Court appointed a partition Commissioner for dividing the suit properties. At that juncture, the petitioners has filed an application under Sec. 4 of the Partition Act for preemption of the suit land from the opposite party which has been registered as Misc. Case No. 9/91.
(3.)The petitioners have, however, claimed that the Plot Nos. 444 and 445 are contiguous and have been used as their family dwelling house. Plot No. 446 is the tank which is under the exclusive use of the plaintiff's family members. The Plot Nos. 447 and 409/525 are being used as the courtyard of the petitioners family. The plaintiff/opposite party No. 1 Since a stranger to the petitioners family is not entitled to get his share partitioned and, therefore, the petitioners have an absolute right to preempt the share of the opposite party No. 1
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