Calcutta High Court (Appellete Side)
Ct-08 Miss Rekha Rani Shit & Anr vs Sri Sudhir Kumar Shit & Ors on 9 February, 2023
40 09.02.2023 SAT 371 of 2015
Ct-08 Miss Rekha Rani Shit & Anr.
Vs.
Sri Sudhir Kumar Shit & Ors.
ar
The appellants are not represented.
The matter is appearing in the list since 6th
February, 2023. Therefore, the appellants have
due notice.
The appeal is defective since 6th August,
2015. Since then no attempt has been made to
remove such defects.
The appellate judgment and decree dated
22nd May, 2015 affirming the judgment and
decree passed by the trial court on 15th
February, 2001 in a suit for preemption filed
under Section 20 of the Hindu Succession Act is
the subject matter of challenge in this second
appeal.
We have carefully gone through the judgment
of the first appellate court as well as the trial
court. The trial court however, held the suit is
maintainable under Section 22 of the Hindu
Succession Act, 1956.
The trial court dismissed the suit on the
ground of limitation. The first appellate court
concurred with the said finding. The suit
property is a bastu land. It appears from the
evidence on record that the co-sharers, namely,
Labanyamayee, Sudhir, Hrishekesh, Srikrishna,
Mantu, Minati, Anjali and Kalpana sold 44/7
decimals of land to one Rahini Shaoo,
respondent no. 1.
In the instant case Kunjabihari Shit who was
the original owner of the suit property had three
sons, namely, Sudhir, Santosh and Subimal.
Santosh died leaving behind his wife
Labanyamayee, three sons namely, Hrishikesh,
Srikrishna and Mantu, four daughters namely,
Minati, Anjali, Kalpana and Rekha. The suit
property was transferred by Labanyamayee,
Sudhir, Krisikesh, Srikrishna, Mantu, Minati,
Anjali and Kalpana in respect of 44/7 decimals of
land to one Rahini Shaoo by virtue of a sale deed
no. 8624 dated 08.08.1978. Here, Rekha Rani
Shit, the daughter of Santosh, is the
plaintiff/appellant and Rahini Sahoo is the
defendant/respondent no. 1. In view of the
above mentioned genealogy of Kunjabihari Shit,
it appears that Sudhir, Santosh and Subimal are
the first class heirs of the deceased Kunjabihari
Shit. Sudhir along with other co-sharers sold
the suit property. Rekha who is also a co-sharer
sold the suit property along with Sudhir where
Sudhir, Santosh and Subimal are alive. Rekha
cannot be considered as an heir of first class of
the schedule of Hindu Succession Act.
In view of the aforesaid, the appellants are
not entitled to preempt the transferred property
as they did not come under the purview of heirs
of Class-I of the Hindu Succession Act.
It transpired that the vendors and vendee are
co-sharers and near relatives and the house of
the plaintiffs/appellants are situated to the west
side of the suit land in the same Mouza. On 23rd
June, 1992 the respondent/defendant no. 1 was
found to be carried out excavation in the suit
land and at that time on being asked the
appellants came to know that the respondent no.
1 had purchased the suit land. This case of the
appellants was not believable as being a co-
sharer and a neighbour they should have the
knowledge of the transfer of the suit land. The
said plot was sold fourteen years back was
known to the appellants. The evidence on record
suggests that the appellants had failed to prove
that they had come to know for the first time on
23rd June, 1992 for the purchase of the suit land
from the respondent no. 1. Further it appears
from the record that the respondent nos. 10 and
11 are the subsequent purchaser of the suit land
from the respondent no. 1. They also contested
the suit/appeal but as per Section 52 of the
Transfer of Property Act, 1882 which provides
doctrine of lis pendence which reflects that it is
based on the principles that the person
purchasing property from the judgment debtor
during the pendency of the suit has no
independent right to property to resist, obstruct
or object execution of a decree. Resistance at the
instance of transferee of a judgment debtor
during the pendency of the proceedings cannot
be said to be a resistance or obstruction by a
person in his own right and, therefore, is not
entitled to get his claim adjudicated (2008) 7
SCC 144.
The concurrent finding of facts on the
question of maintainability of the suit and the
limitation period are based on proper
appreciation of evidence and the relevant
provision of law.
In view thereof, we do not find any reason to
admit the second appeal. The second appeal
does not contain any substantial question of law.
On such consideration, the appeal is
accordingly dismissed at the admission stage.
Interim order, if any, stands vacated.
There will be no order as to costs.
(Uday Kumar ,J.) (Soumen Sen, J.)
