DEBI PROSAD DEY, J.

This first appeal is directed against the judgment and decree dated 31st May, 2010 passed by learned Civil Judge (Senior Division) 3rd Court, Howrah, District-Howrah in Title Suit No. 8 of 2008 whereby and whereunder, the learned Civil Judge (Senior Division), 3rd Court, Howrah has decreed the suit against defendant No. 2/appellant on contest and ex-parte against defendant No. 1/respondent No. 2 (since deceased).

Being aggrieved by and dissatisfied with the judgment and decree, the defendant No. 2/appellant has preferred this appeal on amongst other grounds that the suit is not maintainable in law and that learned Judge has failed to consider the true import of the provision of law and thereby came to an erroneous decision. Respondent No. 1/plaintiff has contested this first appeal.

Respondent No. 2/defendant No. 1 did not contest the suit in the Court below. Defendant No. 1/respondent No. 2 died in the mean time and his heirs have been duly substituted. Since respondent No. 2 was a non-contesting defendant in the Court below service of notices upon the heirs of respondent No. 2 was dispensed with, by this Court.

In order to appreciate the case of the parties to this appeal it would not be out of place to mention in brief about the fact of the case, which runs as follows.

The respondent No. 1 and 2 are two full brothers. Ashalata Devi since deceased is the mother respondent No. 1 and 2. Ashalata Devi purchased ‘A’ schedule property on the strength of a registered sale deed being No. 2443 of 1920 and thereby became absolute owner of the said property. Ashalata Devi died intestate on 29.10.1983 leaving behind her surviving husband, Shri Avaypada Banerjee along with 7 sons and 9 daughters. ‘A’ schedule property thus devolved upon the aforesaid 17 heirs and heiress of the said Ashalata Devi and they acquired 1/17th share each. For convenient use and enjoyment of ‘A’ schedule property, the heirs and heiress of Ashalata Devi including respondent No. 1 and respondent No. 2(since deceased) got the ‘A’ schedule property amicably partitioned by metes and bounds by a deed of partition with a partition plan attached to the said deed of partition and the deed of partition was duly registered in the office of the District Sub-Registrar, Howrah being deed No. 4667 of 1987. The property of respondent No. 1 has been described in schedule ‘B’ of the plaint and the property of respondent No. 2 (since deceased) has been described in ‘C’ schedule property of the plaint.

The specific case of the plaintiff/respondent No. 1 is that partition deed being No. 4367 of 1987 contained a specific clause being clause No. 11 giving preferential right of purchase to the erstwhile co-sharers in case of sale of such property by any of the co-sharers having adjacent property to the property proposed to be sold by other co-sharer. The condition laid down in clause 11 is that the co-sharer is duty bound to inform his adjacent co-sharer about his intention of sale of such property by a written notice and if his adjacent land owner does not reply to such letter only in that event the intending seller may sell out such property to any stranger. The condition laid down in clause 11 thereby gives a preferential right of purchase to the adjoining land owner, who were erstwhile co-sharers in respect of the entire suit plot. The further case of respondent No. 1/plaintiff is that the plaintiff/respondent No. 1 came to know from local people that respondent No. 2 without giving any written notice to the plaintiff/respondent No. 1 has sold out his share of property, described in schedule ‘C’ of the plaint, by 2 registered sale deeds to the appellant/defendant No. 2. Accordingly the respondent No. 1/plaintiff filed the suit under reference praying for implementation of his preferential right of purchase and prayed for a decree of pre-emption in respect of ‘C’ schedule property i.e. the property of respondent No. 2 (since deceased) which has been sol