Calcutta High Court (Appellete Side)
Sri Sasti Charan Dutta & Ors vs Sri Babulal Chatik & Ors on 2 May, 2022
02.05.2022
S/L No.19
KS
S.A.T. 241 of 2019
With
I.A. No. CAN 1 of 2019 (Old No.CAN 7439 of 2019)
Sri Sasti Charan Dutta & Ors.
-Vs.-
Sri Babulal Chatik & Ors.
Mr. Partha Pratim Roy
Mrs. Sohini Chakraborty
.....For the Appellants
The second appeal has come up for admission. The
appellants are aggrieved by the judgment and agree dated
May 27, 2019 passed by the Learned Additional District
Judge, 3rd Court, Alipore in Title Appeal No.17 of 2017 (CIS
Title Appeal No.70 of 2016) partly setting aside the decree
dated 27th October, 2006 passed by the Learned Civil Judge
(Senior Division), 7th Court at Alipore in Title Suit No.82 of
2000. In the title appeal the prayer of the appellants for
preemption was rejected.
Mr. Partha Pratim Roy, learned advocate for the
appellants submits that it is well-settled that when a
partition suit is filed by co-sharer against the other co-
sharers the right to apply for preemption arise when the
other co-sharers are claiming separate allotment of their
share.
The appellants have filed an application under Section 4
of the Partition Act claiming preemption. Section 4 of the
Partition Act clearly postulates that a co-sharer shall have a
right to claim preemption when there is a partition suit filed
by the transferee of share in respect of a dwelling house.
The essential requirements are that the suit property should
be the dwelling house of the co-sharers and one of the
stranger purchaser seeks partition. These two ingredients
need to be established before the Court could exercise his
power and jurisdiction under Section 4 of the Partition Act.
In the instant case, the appellants have failed to establish
that the suit property is a dwelling house, in fact, the suit
property is consisting of a pond belonged to the father of
the plaintiff, Bholanath Dutta to the extent of his share and
after his demise his share devolved upon the plaintiff no.1,
and 3 and defendant nos.5 to 8 to the extent of 1/14 th share
each. The defendant nos.1 to 4 by virtue of transfer from
Basudev Dutta and Manorama Dutta acquired half share in
the suit property the defendant nos.5 to 8 owned 4/14 th
share. The Learned Trial Judge has rejected the submission
made on behalf of the appellants with regard to the
applicability of Section 4 of the Partition Act on the ground
that the suit was filed by the co-sharer/ plaintiffs and not by
the stranger purchaser.
We have gone through the pleadings and the evidence,
there is no evidence on record to show that the suit
property was the dwelling house of the parties.
Mr. Roy, learned advocate for the appellants has relied
upon Single Bench decision of S.A. 17 of 1998 (Moloy
Kumar Ghosh & Ors. Vs. Samarendra Kumar Ghosh)
reported at 2012 (3) ICC 668; 2012 (3) CLT 477 where after
considering the several decisions of the Hon'ble Supreme
Court on preemption under Section 4 of the Partition Act
the following principles have been stated:-
"(1) In a suit for stranger purchaser for partition, a co-sharer
of the undivided family dwelling house can apply for pre-emption
under Section 4 of the Partition Act at any stage of the suit.
(2) But when a suit for partition is filed by a co-sharer
against the other co-sharers and the stranger purchaser, the right
to apply for pre-emption would only arise when the stranger
purchaser seeks separate allotment of his share.
(3) So long no such step is taken, the co-sharer's petition filed
under Section 4 of the Act, cannot be entertained.
(4) In Gautam Paul's case (supra), the Supreme Court has
made it clear that in the meantime the right of the co-sharer shall
be protected by the second part of Section 44 of the Transfer of
Property Act and the stranger purchaser shall be resisted by
injunction to take possession or even if he has taken possession, he
can be evicted in an appropriate proceedings under the law."
One of the principles emerged is that when a suit for
partition is filed by co-sharer against the other co-sharers
and the stranger purchaser has the right to apply for
preemption would only arise when the stranger purchaser
seeks separate allotment of his shares. In the instant case, in
the absence of the property being held to be a dwelling
house and there has been no claim made by the stranger
purchaser seeking separate allotment of his share, these
condition not being fulfilled we do not find any reason to
admit the second appeal on any substantial question of law.
The second appeal fails.
Thus, the appeal and the connected application are
dismissed.
There should be no order as to costs.
(Sugato Majumdar, J.) (Soumen Sen, J.)
