Patna High Court - Orders
Bibi Rubi Khatoon vs Smt. Rama Devi & Ors. on 16 April, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.159 of 2010
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Bibi Rubi Khatoon, wife of Md. Manzoor Alam, Resident of Mohalla-Data
Kamal Shah Road, P.S.-Town, P.O. Town, District-Muzaffarpur.
.... .... Petitioner/s
Versus
1. Smt. Rama Devi, wife of Shri Hirday Prasad Gupta resident of
Mohalla Data Komal Shah Mazar, Shukla Road, Hafiz Jee Chowk,
P.S. Town, P.O. Town, District-Muzaffarpur.
2. Krishan Gopal Sah.
3. Krishna Shekhar Sah, both sons of late Binda Sah, both resident of
Mahnar Chowk Bazar P.O.+ P.S. Mahnar District-Vaishali.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Md. Anis Akhtar
Mr. Arif Siddiqui
For the Respondent/s : Mr. Jitendra Kishore Verma.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL ORDER
7 16-04-2012Heard learned counsel for the parties.
2. By the impugned order, the court below has rejected the prayer of the defendant for dismissing the suit as not maintainable. It is not in dispute that the suit has been filed seeking the relief for pre-emptory right to get the sale deed executed by the defendant 2nd set (purchaser) in favour of the plaintiff on the same terms on which he purchased. The plaintiff specifically in paragraph no. 36 of the plaint has come out with the case that there was an agreement between the plaintiff and the predecessor-in-interest of the defendant 1st set, namely, Shyama Devi (since deceased) that in case of proposed transfer of the suit Patna High Court C.R. No.159 of 2010 (7) dt.16-04-2012 2 property by either of the sister to any stranger to the family, the same would have to be sold in favour of the another sister or her legal heirs. It is further case of the plaintiff that the defendant 1 st set had sold the property to defendant 2nd set in violation of the agreement and therefore, the suit has been filed seeking a decree for pre-emption.
3. During the pendency of the suit, a petition was filed by the defendant 2nd set (predecessor) challenging the maintainability of the suit on the ground that the same did not come within the ambit of Section 22 of the Hindu Succession Act or Section 4 of the Partition Act and the prayer was made for dismissing the suit as not maintainable. The said prayer has been rejected for the present with the observation to consider the objection at the time of disposal of the suit.
4. The learned counsel appearing on behalf of the petitioner has strenuously contended that the suit is not maintainable as the conditions necessary for grant of the relief of preemption are not present. It has been urged that the provisions of Section 22 of the Hindu Succession Act and the provision of Section 4 of the Partition Act are not applicable to the facts and circumstances of the case as disclosed in the plaint and therefore, the learned court below has committed error in not allowing the Patna High Court C.R. No.159 of 2010 (7) dt.16-04-2012 3 prayer of the petitioner holding the suit as not maintainable. It is further contention of the learned counsel that the suit property had been acquired by the gift deed by the predecessor-in-interest (mother) of the defendant 1st set and there cannot be any impediment or restriction on the rights in dealing with property so acquired and therefore the defendant 1st set has legally transferred the suit property in favour of the defendant 2nd set. It has been contended by learned counsel that the plaintiff has not sought relief against the sale deed executed in favour of the defendant 2nd set and as such also no relief can be granted to the plaintiff.
5. Per contra the learned counsel appearing on behalf of the opposite party has submitted that the suit has not been filed in terms of Section 22 of the Hindu Succession Act or Section 4 of the Partition Act and there is a specific averment in paragraph 36 of the plaint regarding the agreement between the plaintiff as well as the predecessor of the defendant 1st set to make offer of purchase of the suit property in case either of them proposed to alienate her share and as such, the right of repurchase has been claimed on the basis of this agreement also besides other grounds. It has been contended that at this stage of the suit the disputed questions of fact cannot be determined and the learned court below has rightly rejected the Patna High Court C.R. No.159 of 2010 (7) dt.16-04-2012 4 prayer of the petitioner.
6. After perusing the impugned order and considering the submissions of the learned counsels for the parties, it is manifest that the suit has been filed for seeking declaration of the pre- emptory right of purchase of the suit property with consequential directions relating to the execution of the sale deed. The copy of the plaint has also been annexed with the revision application and the averments made therein show that besides other grounds the plaintiff has also relied upon an agreement with the predecessor of the defendant 1st set promising to sell the suit property in case of proposed alienation. The validity and legality of the said agreement and other grounds of the plaintiff can be adjudicated only on the basis of evidence and hearing of the suit. The court below has rightly dealt with the objections raised by the petitioner and after considering the facts and circumstances of the case has rightly rejected the objection.
7. There is no illegality or error of jurisdiction in the impugned order. The revision application is, accordingly, dismissed.
(V. Nath, J) Devendra/-