An application under Section 22 of the Hindu Succession Act, 1946, seeking to enforce the preferential right to acquire property, should be registered as a Miscellaneous Judicial Case and not as a suit.

1. This civil revision application is directed against the order dated 27-3-99 passed by Sub-Judge III, Daltonganj in Partition Suit No. 13/93, whereby he has rejected the application filed by the plaintiff-petitioner under Sec. 22 of the Hindu Succession Act.

2. The plaintiff-petitioner instituted the aforementioned suit for partition of the joint property impleading defendants Nos. 1 to 13 but subsequently the defendant No. 14, namely, the sister of the plaintiff was also made party in the suit. The defendant Nos. 12 and 13 were made defendants, who were transferee from one of the co-sharers. It appears that during the pendency of the suit the pro forma opposite parties desired to dispose of their interest in the property and finally executed two sale deeds in favour of defendant No. 12, who figures as principal opposite party No. 1. The plaintiff, therefore, made an application under Sec. 22 of the Hindu Succession Act, 1946 (hereinafter referred to as the said Act) to exercise his preferential right to acquire the property. The said application was opposed by the defendant No. 12 by filing a rejoinder. The Court below, after hearing the parties, rejected the application in terms of the order dated 27-3-99 holding that in exercise of right of pre-emption under the provisions of the said Act the petitioner may bring a regular suit as such question cannot be decided in the instant suit. Hence this revision application.

3. Mr. K. K. Sahay, learned counsel appearing on behalf of the petitioner, assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that the Court below failed to exercise jurisdiction so vested in it by law. According to the learned counsel, the question with regard to preferential right of a party to a property has to be decided in that suit in the event any such application under Sec. 22 of the said Act is filed. Learned counsel, in this connection, relied upon the decision in the case of Bhola Nath Rastogi V/s. Santosh Prakash Arya, AIR 1975 Patna 336 and Ganesh Chandra Pradhan V/s. Rukmani Mohanti, AIR 1971 Orissa 65.

4. On the other hand, Mr. Debi Prasad, learned Sr. Counsel, appearing on behalf of the opposite parties, submitted that during pendency of the suit some of the defendants sold their shares to the contesting opposite party No. 1. The plaintiff-petitioner filed an application in the Court below for an order restraining the defendants from selling their shares. The Court below, in terms of the order dated 22-6-94, directed the defendants not to transfer their shares in the land without permission of the Court. However, the said order was subsequently recalled by the Court below in terms of the order dated 7-10-94. The petitioner challenged the said order by filing C. R. No. 506/94(R) before this Court which was ultimately dismissed as withdrawn. Learned counsel further submitted that in any view of the matter even if the plaintiff has any preferential right he can enforce it by filing a regular suit and that question cannot be decided in a partition suit. In this connection, learned counsel relied upon the decision in the case of Valliyil Sreedevi Amma V/s. Subhadra Devi, AIR 1976 Kerala 19 and Kamal Goel V/s. Purshotam Dass, AIR 1999 Punj and Har 254.

5. Before appreciating the rival contentions of the learned counsel, it would be useful to look into the provisions of Sec. 22 of the Hindu Succession Act (hereinafter referred to as the said Act) which reads as under :-

"22. Preferential right to acquire property in certain cases.- (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in Class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire