A purchaser with notice of a right of pre-emption cannot defeat the right by purchasing the property.

( 1 ) THIS appeal is directed against a Judgment and Order dated 11-5-99 passed by Shri B. Das, Civil Judge, Senior Division, 1st Court, Midnapore in Other Suit No. 57 of 1999 whereby and whereunder he allowed the application for injunction filed by the Plaintiff-Respondent herein.

( 2 ) THE basic fact of the matter is not in dispute. In a suit between Rathindra Nath Ghosh (sic) and Bratindra Nath Ghosh, the predecessors-in-interest of the Plaintiff and the Defendants-Respondents, a compromise was entered into which having been recorded, a consent decree was passed 35-5-89 in J. S. No. 137 of 1981. The compromise petition which formed part of decree contained the following stipulation:-"the dwelling and adjoining land in front of homestead obtained by the parties on which they live, if they like to sell that or any part of that, then they have to inform other side by notice, obtaining the notice if a party is incapable to buy that then the said property can be transferred to other. "

( 3 ) ADMITTEDLY no individual notice was given pursuant to the aforementioned agreement to the plaintiff-respondent but an advertisement was issued in Ananda Bazar Patriaka to the effect that the defendant No. 1 intendes to sell the said property. Thereafter, two registered deeds of sale were executed by Bratindra Nath Ghosh in favour of the appellant herein on or about 20. 5. 98.

( 4 ) THE first deed of sale contained the following stipulation:-"rathindra Nath Ghosh as plaintiff filed Partition Suit No. 137 in the Court of the 1st sub-Judge, Midnapore in the year 1981 for convenience of our possession and during the pendency of the said suit we, all the parties, for making amicable settlement, filed a Solenama on 5. 10. 1983 and in view of the said Solenama, Final Decree was passed by the Court on 30. 11. 1984 and according to the said decree we, the parties to the aforesaid suit, acquired the properties allotted to us. I, the vendor, acquired the properties described in Schedule (Kha) of the said Solenama in 16as. and accordingly the properties described in the schedule below along with the other properties were acquired by me in 16as. "; and

( 5 ) IN the other deed of sale the following stipulations were made:-"rathindranath Ghosh filed a partition suit being No. T. S 137/1981 in the Court of the learned first sub-Judge, Midnapore, for the facility of possession and use, while the suit was going on, we the plaintiff and the defendants having filed a deed of settlement on 5. 10. 1983, on mutual partition, the learned Court passed a decree according to the deed of settlement on 30. 11. 1984 and we have taken possession of the respective shares received by us and I, the vendor have received the property mentioned in schedule (kha) and in the schedule below alone with other property, transferable, in 1/- (sixteen annas) ownership and possession, without the objection or interference of others and am conducting my right etc. and having exercised my right over the road or passage, drainage etc. and I have had my name recorded for the current revisional survey in accordance to the provisions of the landlord, the W. B. Land Reforms Act and by having a separate holding made in my own name, am paying the rent and municipal taxes etc. every year and am obtaining the receipts thereof. At present a lot of money is required to repair my residential house that is broken down and descript. For that reason I took a decision to construct a proper and sound building by selling the same and having expressed my decision to sell the same to my brothers and wanting to sell it to them, they were not agreeable to purchase the same, so I having advertised for sale everywhere. "

( 6 ) IT is, thus, not in dispute that the appellant herein was a purchaser with notice of the aforementioned stipulations in the compromise.

( 7 ) MR. S. P Roychowdhury, the learned senior counsel appearing on behalf of the appellants submitted that the appellants herein had