JUDGMENT

Sanjay K Agrawal, J. - The substantial questions of law involved, formulated and to be answered in this plaintiff's second appeal are as under:-

"1. Whether the lower Appellate Court was not justified in holding that the suit property vide Schedule 'A' of the plaint is not a joint family property in between the brothers and the finding in relation to partition is perverse ?

2. Whether the lower Appellate Court was not justified in dismissing the suit by holding that the plaintiff has taken a contradictory plea in relation to ownership and possession on the one hand, and right of preemption on the other hand ?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and nomenclature in the suit before the trial Court].

2. The suit property was originally held by one Chamru Yadav. He had three sons namely Ramdev, plaintiff herein and Ramdular, defendant No.3 and one Ramsunder, who was not party to the suit. The plaintiff filed a suit claiming right of pre-emption that transfer made by defendant No.3 in favour of defendants No.1 & 2 on 12.7.90 is void and he had preferential right to purchase the suit land in order to maintain integrity of the family and to avoid induction of third party in the ancestral property of the parties. It was further pleaded that for the sake of convenience, the suit property was partitioned in najri partition and pursuant to the said partition, they are cultivating their lands, but holdings were remained joint as the suit property was never partitioned by metes and bounds and the suit land shown in Schedule 'A' is a joint family property of the brothers, therefore, defendant No.3 could not have a right to alienate the suit land in favour of defendants No.1 & 2 and as such, the plaintiff is deprived of his right of pre-emption provided under section 22 of the Hindu Succession Act, 1956 (hereinafter called as 'the Act of 1956') and therefore, sale deed dated 12.7.90 be declared void and defendant No.3 be directed to execute sale deed in his favour on payment of sale consideration as per market value and also prayed for permanent injunction.

3. Defendants No.1 & 2 have filed their written statement and denied the averments made in the plaint stating inter-alia that the suit property has already been partitioned and it has rightly been sold by defendant No.3 in favour of defendants No.1 & 2 and the plaintiff has no right of preemption to purchase the suit property, as such, the suit deserves to be dismissed.

4. The trial Court after upon evaluation and after appreciation of oral and documentary evidence available on record, by its judgment and decree dated 28.3.98, decreed the suit holding that there is no partition between the parties of the suit land and the plaintiff has a right of preemption to purchase the suit land. On appeal being preferred by defendants No.1 & 2 before the first appellate Court, the said Court set aside that finding and held that partition has already taken place between the parties and defendant No.3 has already transferred the suit property in favour of defendants No.1 & 2 on 12.7.90 and the suit was filed on 30.7.90 and in case of concluded transfer, Section 22(1) of the Act of 1956 would not apply. Questioning legality and validity of the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellant/defendant, in which substantial questions of law have been formulated by this Court, which have been set-out in the opening paragraph of this judgment.

5. Mr.Bhupendra Singh, learned counsel for legal representatives of the appellant/plaintiff, would submit that the first appellate Court is absolutely unjustified in holding that partition has already taken place between the parties as there is only najri partition between the parties for the sake of convenience including the name of the plaintiff and that could not confer any right of preemption in the suit land i