The right of preemption under Section 4 of the Partition Act is only available when a stranger purchaser sues for partition.

JUDGMENT

Bibek Chaudhuri, J. - The instant second appeal is directed against the judgment and decree dated 29th November, 2005 and 2nd December, 2005 respectively passed by the learned Additional District Judge, Fast Track 1st Court at Tamluk in Title Appeal No.35 of 2004 reversing the judgment and decree dated 25th January, 2001 passed by the Civil Judge (Senior Division), Tamluk in Title Suit No.99 of 1990.

2. The defendant No.1 and 2 are the appellants before this Court.

3. The respondent as plaintiff instituted Title Suit No.99 of 1990 against the defendants/appellants for partition, preemption of the suit under Section 4 of the Partition Act and permanent injunction stating, inter alia, that plot No.693 comprising in khatian No.192 of mouza Basudebpur, within P.S Durgachak, Medinipur measuring about 36 decimal of land was originally owned and possessed by one Biswanath Mandal, since deceased. Biswanath Mondal died leaving behind two sons Trailokya and Kumar. The said two sons of Biswanath during their life time used to own and possess the said 36 decimal of land in plot No.693 in equal share. Trailokya died leaving behind his only son Dharani. Dharani had two wives. From his first wife he had two sons, namely Ananta and Manmatha Mondal. Dharani had one son, named Santosh by his second wife. Trailokya, Dharani and Ananta are now deceased. Kumar died leaving behind his only son who is the plaintiff of the said suit. Ananta died bachelor and on his death, his brother Manmatha inherited the property left by Ananta. Thus, he inherited 1/3rd share of 36 decimal of land, i.e. 12 decimal of land in the suit plot. Santosh inherited 1/6th share of land, i.e. six decimal in the suit plot. Manmatha sold his 10 decimal land to the plaintiff in the said undivided property by executing a deed of sale dated 27th April, 1962. The remaining 2 decimal of land was transferred by the said Manmatha by way of exchange in favour of Santosh. Thus, Santosh acquired 8 decimal of land in plot No.693. Subsequently Santosh sold out 2 decimal of land out of the said 8 decimal of land to Bharat Chandra Mondal who is the son of the plaintiff and impleaded as proforma defendant in the suit. Subsequently he also sold out the remaining 6 decimal of land in the suit plot in favour of the defendant No.1 and 2 by executing a registered deed of sale. The said property is the disputed suit property morefully described in schedule 'Ka' of the plaint. According to the plaintiffs entire plot No.693 is recorded as bastu. The said plot has not been partitioned as yet. The defendant No.1 and 2 are the stranger purchaser in respect of 'Ka' schedule suit property. Therefore, the plaintiffs have prayed for effecting partition of the suit property and preemption under Section 4 of the Partition Act along with other consequential reliefs.

4. The defendant No.1 and 2/appellants contested the said suit by filing written statement wherein they denied all material allegations made out by the plaintiff against them in the plaint. Specific case of the defendants is that the suit property mentioned in schedule 'ka' of the plaint is not a part of undivided family dwelling house and accordingly the plaintiff is not entitled to a order of preemption in respect of the suit property. Specific case of the defendants/appellants is that the two sons of Biswanath Mondal namely Trailokya and Kumar were separate in mess after the death of their father Biswanath Mondal. They also amicably partitioned the plot No.693 according to their share. Both of them constructed separate house on their plots so partitioned and they used to own and possess their dwelling houses separately. Santosh Mondal sold out well demarcated 6 decimal of land to the defendants No.1 and 2 and the said land was never a part of undivided family dwelling house of the plaintiffs and the vendor of the defendants, namely Santosh. It was further pleaded by the defendants that Santosh offered the plaintiff to purchase the suit