JUDGMENT :- Heard the parties.

2. This appeal has been preferred against the judgment dated 28.4.2004, passed by learned Additional District Judge, Fast Track Court-Ill, Deoghar in Title Appeal No. 8 of 2002 whereby the lower appellate Court has set aside the order dated 11.8.2002 passed by learned trial Court, rejecting the petition filed by the appellant-defendant No. 4 under Order VII, Rule 11, C.P.C.

3. The plaintiff filed suit being Title (D) Suit No. 54 of 2001 in the Court of Sub-Judge-I, Deoghar praying relief for declaration that the plaintiff is a co-owner and has a preemptory right to purchase the suit property and for permanent injunction, restraining the defendants from transferring the suit property or from altering the status of the property.

4. The case of the plaintiff was that the plaintiff and the defendants are co-owners of the joint property being Plot Nos.196, 197 and 207 (part) also numbered as Town Plot No. 1401, measuring 4 Kattha, 10 Dhur, equivalent to 0.26 acre. The said land was acquired by Rohini Estate and was settled with Haldhar Mishra. Said Haldhar Mishra came in possession of the said land and constructed a Pucca building and started living therein. Subsequently, he sold the said property to Bhairav Chandra Lahiri, who later on transferred the same to Smt. Pantha Devi and Prabhawati Devi by virtue of sale-deed dated 23-12-1946. The said purchasers came in joint possession of the property. On partition between the purchasers, eastern portion was allotted to Smt. Pantha Devi, who got her name mutated and paid rent and municipal taxes. Smt. Pantha Devi, thereafter, sold her property to Mrityun-jay Rai by virtue of sale-deed dated 20-1-1962 and, in his turn, Mrityunjay Rai sold the said property to Smt. Tarulata Rai Choudhary, mother of the plaintiff, who had been in possession of the said property. The western portion of the property was allotted to Prabhawati Devi and she had been in possession thereof. After her death the same has come in possession of defendant Nos.1 and 2. The defendant Nos.1 and 2 executed a power of attorney in favour of defendant Nos.3 and 4 for the purpose of selling the suit property. The plaintiff, being co-owner, claimed preferential and preemptory right of the said holding and as such, the plaintiff sent a notice to the defendants but in spite of the plaintiff's offer and notice, the defendants have executed six agreements for sale in favour of six different persons. Hence the suit.

5. The defendant No. 4 appeared and filed written statement, denying and disputing the facts and stating, inter alia, that the plaintiff is not a co-owner of the suit property nor has got preferential or peremptory right and that such claim made after 38 years is barred and untenable. It has been stated that there was a partition between Pantha Devi and Prabhawati Devi and their names were separately mutated in respect of the portion of the property allotted to their respective share. The defendant Nos.1 and 2 after allotment of the share came in exclusive possession of the western side of the said property and, thereafter, they have sold the property to different purchasers. All the purchasers are in possession of their respective portion, purchased by them. The said defendant No. 4, subsequently, filed a petition stating, inter alia, that the plaintiff has not disclosed the cause of action for the suit and the plaint is liable to be rejected under the provisions of Order VII Rule 11 C.P.C.

6. Learned trial Court by its order dated 4.9.2001 rejected the plaint on the ground that the plaintiff has got no legal and constitutional right of preemption. The plaintiff, thereafter, preferred an appeal in the Court of learned District Judge, Deoghar, which was registered as Title Appeal No. 8 of 2002. The said appeal was heard and disposed of by learned Additional District Judge, Fast Track Court-Ill, Deoghar, by the impugned judgment. Learned lower appellate Court after thorough consideration and d

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