JUDGMENT

Subhasis Dasgupta, J. - The Second Appeal is directed against the judgment and decree, dated 28th November, 2000, passed by Learned Additional District Judge, 1st Court, Hooghly in Title Appeal No. 167 of 1993, affirming the judgment of the Trial Court, passed by Learned Assistant District Judge, 2nd Court, Hooghly in Title Suit No. 88 of 1985.

2. Trial Court in partition suit (T.S. No. 88 of 1985) filed by the plaintiffs/respondents granted preliminary decree upon declaring 50 annas share of the respondents/plaintiffs in respect of the suit property, mentioned in the schedule to the plaint.

3. As per schedule mentioned in the plaint, there is a house in suit property involving plot nos. 1525 and 1526 within Mouza- Baidyabati, appertaining to Khatian No. 524, measuring a total area of 12 Cottah, 4 Chatak house property.

4. In order to perfectly address the issues, raised in this Second Appeal, a reference to some of the significant facts may be of highest relevance. The case of the appellants is that they were inducted as tenants in respect of the suit house, standing in the schedule property, by both the brothers namely, Tarapada Ghosh and Gangadhar Ghosh, being erstwhile owners, at a rental of Rs. 30/- per month.

5. Admittedly, Tarapada and Gangadhar are the erstwhile owners of the suit property, having equal share each. By a deed dated 23rd July, 1883, Tarapada transferred his 8 annas shares in respect of the suit property, mentioned in the schedule to the plaint, to appellants/defendants. Upon being approached by appellants, Gangadhar, the other brother of Tarapada, too disclosed his intention to transfer his 8 annas share in respect of the suit property to appellants/defendants.

6. Ultimately, appellants/defendants to their utter surprise could discover that though Gangadhar caused delay in transferring his 8 annas share in suit property to appellants/defendants, but he ultimately had transferred his 8 annas share to plaintiffs by deeds dated 17th August, 1984.

7. The further case of the appellants/defendants is that those two deeds of respondents/plaintiffs had been collusively prepared, and as such not binding upon the appellants/defendants. Appellants/defendants to challenge the claim for partition, instituted by the respondents/plaintiffs, filed written statement denying material averments contained in plaint so as to frustrate the claim for partition.

8. Since, appellants/defendants had acquired right, title, interest to the extent of 8 annas share in suit property, they proceeded to file two preemption cases being Misc. Case No. 100 of 1986 and Misc. Case No. 101 of 1986 against respondents/plaintiffs to enforce their right of pre-emption, as against the property, stated to have been purchased by the plaintiffs on the strength of two deeds dated 17th August, 1984, executed by Gangadhar Ghosh, being the brother of Tarapada Ghosh.

9. The defence set up in the written statements, filed by the appellants is that, since appellants were inducted as tenants in respect of the entire suit building, and since appellants were in exclusive possession of the entire building, the right of partition would not be available in the given facts situation, without evicting the appellants under due process of law from the suit premises.

10. The Trial Court upon consideration of the pleadings, framed as many as four (4) issues, mentioned as hereunder:

'1. Is the suit maintainable in its present form?

2. Have the plaintiffs alleged share in the suit property?

3. Are the plaintiffs entitled to decree as prayed for?

4. To what other relief, if any, are the plaintiffs entitled?'

11. The preliminary decree granted by the Trial Court was challenged in appeal vide. Title Appeal No. 167 of 1993 of learned Additional District Judge, 1st Court, Hooghly. The 1st Lower Appellate Court affirmed the judgment of the Trial Court.

12. In the Second Appeal preferred by the appellants/defendants, following substantial questions of law were framed:

'I. The appellan