The central legal point established in the judgment is the applicability of Section 22 of the Hindu Succession Act in a pre-emption suit involving a Hindu joint family property, and the plaintiffs' preferential right over a stranger to the family.

1. The defendants have filed this First Appeal against the judgment and decree dated 2-11-2007 passed by Sri Ranjan Kumar, Subordinate Judge III, Aurangabad in Pre-emption Suit No. 226 of 2004/115 of 2004.

2. The plaintiffs-respondents filed the aforesaid pre-emption suit praying for a decree for transferring the suit land by the defendant No. 2 in their favour and also prayed for restraining the defendants from transferring or making construction over the suit land.

3. The plaintiffs-respondents prayed the aforesaid relief on the facts that the plaintiffs and the defendant No. 1 had common ancestor Late Dargahi Sao and they constitute a joint Hindu family governed by Mitakshara School of Hindu Law. Dargahi Sao had three sons namely Mungeshwar Sao alias Mungeshwar Prasad, Bhagat Sao alias Bhagat Prasad and Rajaram Sao alias Rajaram Prasad. Mungeshwar Sao died in the year 1974 leaving behind his four sons. Out of them, Dwarika Prasad is plaintiff No. 2. Bhagwat Prasad died in the year 1999 leaving behind his four sons and out of them, Bijay Prasad is plaintiff No. 1. The defendant No. 1 is the third son of Dargahi Sao i.e. Rajaram Sao. The further case is that the plaintiff and defendant No. 1 hold their ancestral dwelling house and Khand in plot No.503 area 3 decimal and in plot No. 504 area 2 decimal and they are in joint possession. There had been no partition of the house and Khand by the metes and bounds but the parties are in separate possession according to their convenience. The defendant No. 1, Rajaram Prasad without giving any notice to the plaintiffs sold 31/8 decimal area of plot Nos. 503 and 504 to defendant No. 2, Leela Devi by registered sale deed dated 12-8-2004. Leela Devi is stranger to the family and defendant No. 1 sold in excess of his share. He has got only l/3rd share. The plaintiffs obtained the certified copy of the sale deed and are ready and willing to deposit the amount of consideration mentioned in the sale deed and therefore, the defendants may be directed to transfer the transferred land in favour of the plaintiffs.

4. On being noticed, the defendant Nos. 1 and 2 appeared and filed separate contesting written statement. According to the defendant No. 1, there had already been oral partition between the three sons of Dargahi in the year 1972. In that partition, the defendant No. 1 was allotted 2 decimals in plot No. 504, 11/8 decimal in plot No. 503 and 11/4 decimal in plot No. 505. After the said partition, the patties were in separate possession. There was no joint family. In the recent municipal survey, the defendant has got separate "Purcha" for the lands allotted to him and for meeting his legal necessity, the defendant negotiated with the plaintiff to sell his share but when they did not agree to pay adequate price, he sold the same to the defendant No. 2.

5. According to the written statement of the defendant No. 2 also, there had already been partition between the three brothers orally in the year 1972 as such, there was no joint family and after purchase, she is coming in possession of the suit property.

6. On the basis of the above pleadings, the learned Court below has framed following issues :

(i) Is the suit as framed maintainable?

(ii) Have the plaintiffs got valid cause of action for the suit?

(iii) Is the suit under valued and Court fee paid is insufficient?

(iv) Is the suit hit by Specific Relief Act?

(v) Are the plaintiff entitled of transferring the suit land in their favour by defendant No. 2 by right of pre-emption?

(vi) Are the defendants liable to be prevented from making any construction or transfer the suit land?

(vii) To what relief or reliefs the plaintiffs are entitled?

7. After trial, the learned Court below found that there had been no partition by metes and bounds between the parties and therefore, the plaintiffs are entitled for preemption and decreed the suit.

8. Mr. Choudhary, the learned counsel appearing on behalf of the appellants submitted that the sui