High Court · 2012

This appeal by the plaintiff is directed against the judgment an d decree dated 11th June, 2009 passed by the learned District Judge, Jorhat in T itle Appeal No.12/2007, whereby and whereunder the appeal preferred by the prese nt respondent No.2 has been allowed by setting aside the judgment and decree dat ed 16th May, 2007 passed by the learned Civil Judge, Jorhat in Title Suit No.38/ 2005 declaring the preferential right of the plaintiff over the suit land and ca nceling the sale deed executed by the defendant No.1 in favour of the defendant No.2. [2] The appellant as plaintiff instituted the aforesaid suit in the Court of the learned Civil Judge, Jorhat contending iner-alia that the suit land originally belonged to Late Gyanandra Nath Das, the grand father of the plainti ff and the father of the defendant No.1 Nityandra Kr. Das, apart from other land s. According to the plaintiff, the suit land is the ancestral joint property adj acent to the resident of the plaintiff and though he has a preferential right un der Section 22 of the Hindu Succession Act, 1956 (in short, (cid:28)the Act (cid:29)), the defe ndant No.1 sold the suit land to the defendant No.2 at a consideration of Rs.4,5 0,000/- by executing a registered deed of sale. The plaintiff, therefore, filed the suit claiming the preferential right of purchase and for cancellation of th e sale deed. [3] The suit was contested by the defendant Nos.1 and 2 by filing wr itten statements denying the claim of the plaintiff. It has been contended in t he written statements filed that after the death of Gyanandra Nath Das, there wa s a family partition amongst the heirs on 15th October, 1999 and the suit land f ell in the share of the defendant No.1, who, by a registered deed sold it to the defendant No.2. It is the pleaded case of the defendants that the plaintiff ca nnot claim the preferential right of purchase under Section 22 of the Act. [4] ties framed the following issues for consideration and decision:- The learned Trial Court on the basis of the pleadings of the par (cid:28)(1) Whether the suit is barred by limitation? (2) land? Whether the plaintiff is entitled to any preferential right in the suit (3) be cancelled? Whether the sale deed executed in favour of defendant No.2 is liable to (4) To what relief/reliefs the parties are entitled? (cid:29) The learned Trial Court upon consideration of the materials avai [5] lable on record came to the conclusion that the plaintiff has the preferential r ight in respect of the said property in terms of the provision contained in Sect ion 22 of the Act, provided he pays Rs.4,50,000/- to the defendant No.1. The lea rned Trial Court accordingly, passed a decree for cancellation of the sale deed executed by the defendant No.1 in favour of the defendant No.2. [6] Being aggrieved the defendant No.2 preferred Title Appeal No.12/ 2007, which was allowed by the learned District Judge by the aforesaid judgment and decree by setting aside the judgment and decree passed by the learned Trial Court. Hence the present appeal. [7] d Mr. Y. Doloi, learned counsel appearing for the respondent No.2. I have heard Mr. G. Kakati, learned counsel for the appellant an [8] It has been submitted by Mr. Kakati, learned counsel for the app ellant that the plaintiff being the grand son of Gyanandra Nath Das, he has the preferential right of claim under Section 22 of the Act and hence, the learned D istrict Judge ought not to have allowed the appeal and set aside the judgment an d decree passed by the learned Trial Court. The learned counsel, therefore, sub mits that the appeal be admitted for hearing by formulating the substantial ques tion of law as to whether the plaintiff has the preferential right under Section 22 of the Act. [9] Mr. Doloi, learned counsel appearing for the respondent No.2/def endant No.2, on the other hand, has submitted that the plaintiff being not the C lass-I heirs of Gyanandra Nath Das, he having not claimed that his father Puspen dra Das predeceased Gyanandra Nath Das, he is not entitled to claim the preferen tial right under the said Act. It has also been submitted that the family parti tion amongst the heirs of Gyanandra Nath Das, namely Puspendra Das, Nityendra Ku mar Das and other heirs, were proved vide Exhibits-5 and 6 and by virtue of such family partition, the suit land fell in the share of Nityendra Kumar Das, the d efendant No.1, who transferred the suit land in favour of the defendant No.2. [10] It appears from the judgment passed by the learned First Appella te Court that after the death of Gyanandra Nath Das, there was family partition affected amongst the heirs vide Exhibits-5 and 6, which was proved by adducing c ogent evidence. The suit land, by virtue of such family partition fell in the s hare of Nityendra Kumar Das (defendant No.1), who in turn, sold it to the defend ant No.2 by registered deed of sale. Section 22 of the Act confers the preferen tial right to acquire property by a Class-I heirs. Admittedly, the plaintiff wa s not the Class-I heirs of Gyanandra Nath Das, the plaintiff’s father being aliv e when Gyanandra died. That apart, during the lifetime of the plaintiff’s fathe r Puspendra Das, who was one of the sons of Gyanandra Nath Das, there was family partition and accordingly, the suit land fell in the share of Nityendra Kumar D as (defendant No.1), another brother of Puspendra. That being the position, the plaintiff cannot claim any preferen [11] tial right under Section 22 of the Act. Hence, the learned First Appellate Cour t has not committed any illegality in deciding the appeal. No substantial quest ion of law, therefore, is involved in the present appeal. Hence, the same is di smissed. [12] The appeal stands dismissed. No costs.