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2010 DIGILAW 1285 (CAL)

Birendra Nath Halder v. Haripada Halder

2010-10-06

TAPAN KUMAR DUTT

body2010
Judgment : TAPAN KUMAR DUTT, J. This Court has heard the Learned Advocates for the respective parties. The plaintiffs/appellants along with others filed title suit No.104 of 2000 against the defendants/respondents and such suit was placed before the learned Civil Judge (Junior Division) 2nd Court at Baruipore. The plaintiffs prayed for a decree for preemption under Section 22 of the Hindu Succession Act, 1956. The case of the plaintiffs, briefly, is that the suit property originally belonged to Jitendra Nath Halder, and Rakhal Chandra Halder, each having half share in such property and their names were recorded in the R. S. record of right. The plaintiffs’ further case was that after the death of Jitendra Nath Halder his share was inherited by his six sons and three daughters in equal shares and after the death of Rakhal Chandra Halder his share was inherited by his three sons (Parbati, Pashupati and Biren) one daughter (Subhadra) and widow (Chamatkari); after the death of Parbati, his share was inherited by his widow (Bisakha) and two daughters (Kajal and Basanti); Kajal and Basanti, the two daughters of parbati, transferred their share in the suit property in favour of the defendants; Pashupati, one of the sons of Rakhal Chandra Halder, also transferred his share in the suit property in favour of the defendants. Plaintiff No.7 (Biren, son of Rakhal Chandra Halder) and plaintiff No.8 (Bisakha, widow of Parbati) pleaded that they have acquired a right of preemption under Section 22 of the Hindu Succession Act. According to the plaintiffs, the suit property is an undivided property of the plaintiffs and their co-sharers. It will appear from the impugned judgment that even though the suit was originally filed by eight plaintiffs, subsequently, by an order dated 11.1.2001 the Learned Trial Court expunged the names of the plaintiffs No.1 to 6 and, consequently, only two plaintiffs, that is plaintiff No.7 and 8, proceeded with the suit. It will also appear from the said impugned judgment that the plaintiffs prayed for preemption only in respect of their title deed executed on 9.1.1998. It will also appear from the said impugned judgment that the plaintiffs prayed for preemption only in respect of their title deed executed on 9.1.1998. The plaintiffs pleaded that the defendants threatened to make constructions upon the undivided Bastu land and also threatened to catch fish from the pond and the plaintiffs were compelled to file title suit No.23 of 1998 in the Court of the Learned 3rd Civil Judge, Junior Division (Baruipore) which was subsequently transferred to the Court of the Learned 2nd Civil Judge Junior Division (Baruipore) and was renumbered as title suit No.104 of 2000. The defendants filed a written statement denying the material allegations made in the plaint and contended inter alia, that the defendants are in possession of a portion of the suit property even prior to their purchase of the same and there is no dwelling house in the suit property. It was further contended in the written statement that Basanti Haldar is not a first class heir. The said suit came up for hearing and the Learned Trial Court by its judgment and decree dated 31st January, 2004 decreed the said suit on contest against the defendant No.1 and ex parte against the defendant No.2 by declaring that the plaintiffs are entitled to a decree for preemption under Section 22 of the Hindu Succession Act, 1956 in respect of the suit property. The plaintiffs were directed to deposit the consideration money as mentioned in the sale-deed in question in the name of the defendants in Court within a stipulated period of time and the defendants were directed to execute an appropriate sale-deed in favour of the plaintiffs/appellants within a stipulated period of time and in default the plaintiffs were given liberty to take steps for execution of such saledeed through Court. Challenging the said judgment and decree passed by the Learned Trial Court the defendants preferred an appeal being title appeal No.8 of 2004 which was placed before the Court of the Learned Civil Judge (Senior Division), Baruipore. The Learned Lower Appellate Court by the impugned judgment and decree allowed the said appeal and set aside the judgment and decree passed by the Trial Court and dismissed the said suit on contest against the defendant No.1 and ex-parte against the defendant No.2. The Learned Lower Appellate Court by the impugned judgment and decree allowed the said appeal and set aside the judgment and decree passed by the Trial Court and dismissed the said suit on contest against the defendant No.1 and ex-parte against the defendant No.2. Challenging the impugned judgment and decree dated 30th August, 2006 passed by the Learned Civil Judge (Senior Division), Baruipore in the said title appeal No.8 of 2004, the plaintiff Nos.7 and 8 have filed the instant second appeal. The Learned Trial Court in its judgment found, inter alia, that the suit is maintainable and the sale-deed dated 9.1.98 is legally valid. The Learned Trial Court found that Pashupati and Biren are class one heirs of Rakhal, and Bisakha, Kajal and Basanti are class one heirs of Parbati. It was further found by the Learned Trial Court that Pashupati, Basanti and Kajal sold the suit property to the defendants by virtue of one sale-deed and that the plaintiffs are entitled to a decree for preemption in respect of the suit property under Section 22 of the said Act of 1956. The Learned Trial Court decreed the suit as indicated above. The Learned Lower Appellate Court found in its judgment that the title deed in question has not been a part of the schedule to the plaint and according to the said Learned Court another schedule ought to have been added in the plaint containing the description of the title deed in question. The Learned Lower Appellate Court found that the plaintiffs have prayed for preemption only in respect of the title deed executed on 9.1.1998. The Learned Lower Appellate Court was of the view that even if a decree is passed in the suit filed by the plaintiffs such decree cannot be executed since the title deed is not a part of the schedule to the plaint and on this ground the Learned Lower Appellate Court held that the Learned Trial Court was wrong in passing the decree. The Learned Lower Appellate Court further found that Ex.2, that is the deed in question, reveals that Pashupati, Basanti , Kajal and Sundari executed the said deed in favour of one Rampada Halder but it appears from the plaint that Haripada Halder has been impleaded as defendant No.1 in the suit and the deed dated 9.1.1998 was not executed in favour of Haripada. The Learned Lower Appellate Court found that in spite of such fact the suit for preemption was filed also against Haripada and the decree for preemption was passed also against him. According to the said Learned Lower Appellate Court such decree cannot be executed against Haripada. The Learned Lower Appellate Court further found that Kajal, Basanti, Bisakha and Sundari are not the class one heirs of Rakhal and the transfer made by Kajal and Basanti cannot be the subject matter of preemption by Biren. The said Learned Court further observed that the transfer made by Pashupati could not be the subject matter of preemption by Bisakha. The said Learned Court found that Bisakha the class one heir of Parbati, along with Kajal and Basanti cannot preempt the transfer made by Pashupati. According to the Learned Lower Appellate Court the transfer made by Basanti, Kajal cannot be the subject matter of preemption by Biren and that Bisakha alone could preempt the transfer made by Kajal and Basanti if the exact area of their transferred land was shown in the schedule to the plaint along with the correct description of title deed. The Learned Lower Appellate Court was of the view that neither Biren nor Bisakha could preempt the transfer made by Sundari. The Learned Lower Appellate Court found that Ext.2 shows that there are three schedules in the said deed namely KA, KHA and GA schedule and the portion of the property transferred by Pashupati has been shown in Schedule KA the portion of the property transferred by Basanti and Kajal has been shown schedule KHA and the property transferred by Sundari is shown in schedule GA and, therefore, the schedule of the plaint is defective and no decree of preemption can be passed on the basis of such defective schedule. The Learned Lower Appellate Court was also of the view that the decree for preemption cannot be passed against defendant No.1 because the deed was not executed in favour of the defendant No.1. With such findings the Learned Lower Appellate Court allowed the said title appeal and set aside the judgment and decree passed by the Learned Trial Court. The Learned Lower Appellate Court was also of the view that the decree for preemption cannot be passed against defendant No.1 because the deed was not executed in favour of the defendant No.1. With such findings the Learned Lower Appellate Court allowed the said title appeal and set aside the judgment and decree passed by the Learned Trial Court. The Learned Advocate for the appellants submitted that the properties which are the subject matter of preemption, as mentioned in the schedule to the plaint, tallies with the schedule of properties transferred by Pashupati, Kajal and Basanti as mentioned in the sale-deed dated 9.1.1998. It was submitted by the Learned Advocate that the finding of the Learned Lower Appellate Court that the plaint schedule is defective is a perverse finding. He further submitted that the exact area of land transferred by Kajal and Basanti has been correctly mentioned in the plaint and, therefore, the Learned First Appellate Court ought to have held that the said Bisakha can preempt the transfer made by Kajal and Basanti in favour of defendant No.2. The said Learned Advocate submitted that even though the Learned First Appellate Court held that Bisakha cannot preempt the transfer made by Psupati the said Learned Court did not come to any finding as to whether Biren can preempt the transfer made by Pasupati. He contended that Biren and Pasupati are Class I heirs of Rakhal and as such Biren can preempt the transfer made by Pasupati in favour of defendant No.2. According to the said Learned Advocate the Learned Trial Court held that Biren and Bisakha are entitled to preempt the transfer made in favour of the defendants and the Learned Lower Appellate Court has not reversed the said finding of the Learned Trial Court inasmuch as it relates to Biren’s right to preempt. The said Learned Advocate submitted that the Lower Appellate Court committed a substantial error of law is not holding that a decree for preemption can be passed in favour of the plaintiffs but only against the defendant No.2 to the extent of the transfer made by Pasupati, Kajal and Basanti as would appear from the deed being Ext.2. The said Learned Advocate submitted that the Lower Appellate Court committed a substantial error of law is not holding that a decree for preemption can be passed in favour of the plaintiffs but only against the defendant No.2 to the extent of the transfer made by Pasupati, Kajal and Basanti as would appear from the deed being Ext.2. The said Learned Advocate further submitted that the Lower Appellate Court misdirected itself in considering plaintiff’s right of preemption in respect of transfer made by Sundari when the plaintiffs did not seek any relief in respect of the transfer made by Sundari and this fact shows that the judgment of the Lower Appellate Court suffers from a total non-application of mind. It was submitted by the said Learned Advocate that the Learned Lower Appellate Court reversed the findings of the Learned Trial Court without considering the reasons given by the Learned Trial Court in support of its findings and/or conclusion. The said Learned Advocate submitted that since Pasupati transferred his interest, Biren being a Class I heir of Rakhal, has a preferential right to acquire that interest by purchase and the Learned Lower Appellate Court should have held so. He further submitted that the Learned Lower Appellate Court should have also held that since Kajal and Basanti sold their interest, Bishakha being a Class I heir of Parbati has a preferential right to acquire that interest by purchase. He referred to Section 22 of the said Act of 1956. The said Learned Advocate further submitted that the plaintiffs’ right to sue arose out of the sale deed dated 9.1.1998 and if the plaintiffs had brought separate suits common questions of law and facts would have arisen and as such in terms of the provisions of Order 1 Rule 1 C.P.C. the plaintiffs have jointly filed the suit. The Learned Advocate for the respondents submitted that the suit is not maintainable as the causes of action are separate. He submitted that Biren is not the Class I heir of Parbati and therefore Biren had no right of preemption in respect of the transfer made by Kajal and Basanti. The Learned Advocate for the respondents submitted that the suit is not maintainable as the causes of action are separate. He submitted that Biren is not the Class I heir of Parbati and therefore Biren had no right of preemption in respect of the transfer made by Kajal and Basanti. It was submitted by the said Learned Advocate that even though cause of action may acquire on the same day out of the same transaction but according to Order 1 Rule 1 C.P.C. Biren cannot be joined as plaintiff in the suit as the property and/or interest over which Biren has a right is different and the person pasupati against whom Biren can exercise his right of preemption is different; similarly, Bisakha’s right of preemption is against Kajal and Basanti and in respect of property transferred by Kajal and Basanti which are quite different and separate. Therefore, according to the said Learned Advocate the reliefs claimed by Biren and Bisakha and their respective causes of action are different from each other. The said Learned Advocate submitted that the suit is not maintainable on the ground that it suffers from non-joinder of necessary parties since Kajal, Basanti and Pasupati who had transferred their shares have not been made parties to the suit. According to the said Learned Advocate the plaintiffs/appellants have failed to enforce their claim against the aforesaid transferors as they have not been made parties to the suit. It was submitted by the said Learned Advocate that according to the provisions of the said Act of 1956 the preferential right to be exercised is against the Class I heir who proposes to transfer his interest; in other words, the person who was sought to be preempted from transferring his/her share in the property was not made a party to the suit and therefore the suit is not maintainable. He further submitted that the suit should fail owing to non-joinder of necessary parties in terms of Order 1 Rule 9 C.P.C. It was submitted by the said Learned Advocate that in absence of Pasupati, Kajal and Basanti no effective order can be passed in the suit and the most affected persons by an order passed in the suit would be Pasupati, Kajal and Basanti as their right to transfer their shares has been sought to the preempted by the plaintiffs and in the absence of the transferors any order passed in the suit would not be effective as the same will not be binding upon them and, thus, the suit must fail on the ground of non-joinder of necessary parties. The said Learned Advocate thus submitted that the suit is not maintainable and that such point of law can be taken at any stage of the suit. He referred to the case reported at AIR 1963 SC 786 (Udit Narayan Singh Malpaharia - vs. -Additional Member Board of Revenue Bihar & Anr.). Reference was made to Paragraph 7 of the said reports wherein it has been observed by the Hon’ble Supreme Court that a necessary party is he without whom no order can be made effectively; a proper party is he in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The said Learned Advocate referred to the decision reported at 1998(3) SCC 246 (Azar Hasan & Ors. - vs. - Distt. Judge, Saharanpur & Ors.). In the said decision the sale-deed concerned was not executed by the plaintiffs but by others and such other persons were not made parties to the suit. The sale deed was challenged on the ground of fraud. The Hon’ble Supreme Court was pleased to observe that the plaint was rightly returned to the plaintiff. It is quite obvious that if an allegation of fraud is made against any person no effective order can be passed on such issue without impleading such person in the proceeding and giving such person an opportunity to defend himself. The Hon’ble Supreme Court was pleased to observe that the plaint was rightly returned to the plaintiff. It is quite obvious that if an allegation of fraud is made against any person no effective order can be passed on such issue without impleading such person in the proceeding and giving such person an opportunity to defend himself. The next decision cited by the said Learned Advocate is the one reported at 1992 (2) SCC 524 (Ramesh Hirachand Kundanmal - vs. - Municipal Corporation of Greater Bombay) in support of his contention that since the transferors were not made parties to the suit the suit must fail. It was submitted by the said Learned Advocate that Section 22 of the said Act of 1956 does not apply to the facts of the instant case as the defendants/respondents are not strangers to the family of the plaintiffs and they are co-sharers of the plaintiffs and they have been residing in the suit property prior to the purchase. Reference was made to AIR 1994 Gauhati 88 (Shri Dwijabrata Das and others - vs. - Shri Debabrata Das and another) by the said Learned Advocate on the question as to what is the main object of Section 22 of the said Act of 1956. He submitted that the object of the said Section 22 is to restrict only Class I heir upon whom the property devolves by inheritance from transferring the same to a stranger so as to avoid trouble in the family and to maintain peace in the family. The next submission made by the said Learned Advocate was that the sale concerned was found to be valid by both the Learned Courts below and the appellants have failed to show their ability to purchase the suit property. According to the said Learned Advocate, Biren failed to show that the plaintiffs had the ability to purchase the suit property at the price at which there were sold. It was further submitted by the said Learned Advocate that since Bisakha did not come forward to depose in the case she failed to prove her interest in buying the suit property and as per the provisions of Section 22 of said Act of 1956 the plaintiff/appellants should bear all the costs of the suit. It was further submitted by the said Learned Advocate that since Bisakha did not come forward to depose in the case she failed to prove her interest in buying the suit property and as per the provisions of Section 22 of said Act of 1956 the plaintiff/appellants should bear all the costs of the suit. The respondents’ Learned Advocate submitted that since Parbati had gifted his property in favour of Kajal and Basanti the latter could sell the same to anyone as absolute owners and the said Section 22 is not applicable as there is no devolution of property of the intestate upon the Class I heirs. According to the said Learned Advocate the suit is bad for mis-joinder of parties since the said deed dated 09.01.1998 was not executed in favour of Haripada but Haripada was made a party to the suit and that the schedule of the property has also not been properly described in the plaint. According to the said Learned Advocate the argument that Biren could preempt the sale made by Pasupati and Bisakha could preempt the sale made by Kajal and Basanti is not tenable inasmuch as the plaint prays for preemption as a whole and no such bifurcation is permissible. The said Learned Advocate also contended that the appellants submitted that one of the properties mentioned in the gift deed is also present in the schedule of the plaint, and, therefore, there can never be any preferential right to the property. The said Learned Advocate submitted that this Court should not interfere in second appeal when there is nothing to show that the Learned First Appellate Court had come to any wrong conclusion on the basis of any non-appreciation of material evidence. With regard to the point of separateness of causes of action and the point raised by the Learned Advocate for the respondents regarding nonmaintainability of the suit on the ground of mis-joinder of causes of action reference may be made to the provisions of Order 1 Rule 1 C.P.C. The right of the plaintiffs/appellants arise from the same deed dt. 9.1.1998 and if they had brought separate suits common questions of law and fact would have arisen. 9.1.1998 and if they had brought separate suits common questions of law and fact would have arisen. For ready reference Order 1 Rule 1 C.P.C. is quoted below: Order 1 Rule 1 C.P.C: “ Who may be joined as plaintiffs – All persons may be joined in one suit as plaintiffs where – (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transaction is alleged to exist in such persons, whether jointly, severally or in the alternative, and (b) If such persons brought separate suits, any common question of law or fact would arise.” The Learned Advocate for the appellants rightly submitted that in the written statement there is no pleading regarding mis-joinder of causes of action and in terms of the provisions of Order 2 Rule 7 C.P.C. the objection now being taken on behalf of the respondents shall be deemed to have been waived. Provisions of Order 2 Rule 7 C.P.C. are quoted below:- “Objections as to misjoinder: All objections on the ground of mis-joinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.” Learned Advocate for the appellants also referred to Section 99 C.P.C. which stipulate that no decree shall be reversed or substantial varied, nor shall any case be remanded, in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Of course, it has also been stipulated that nothing in the said section shall apply to non-joinder of a necessary party. This Court does not find any substance in such point raised on behalf of the defendants/respondents. In any event, the objection now being taken on behalf of the respondents shall be deemed to have been waived. Of course, it has also been stipulated that nothing in the said section shall apply to non-joinder of a necessary party. This Court does not find any substance in such point raised on behalf of the defendants/respondents. In any event, the objection now being taken on behalf of the respondents shall be deemed to have been waived. The point raised by the Learned Advocate for the respondents regarding non-maintainability of the suit on the ground of non-joinder of necessary parties (Pasupati, Kajal and Basanti, the vendors is also devoid of any substance since by the time the suit was filed the transfers had already been effected and the said vendors had no subsisting interest in the suit property when the said suit was filed. It will further appear that the validity of the said deed dated 9.1.1998 was never challenged by the defendants/respondents and it has been rightly submitted on behalf of the appellants that the respondents relied upon the said deed to claim their title in the suit property. In none of the Courts below the defendants/respondents took away effective objection regarding non-joinder of any necessary party and the Learned Advocate for the appellants rightly submitted that the respondents are estopped from raising such point in the second appeal and the suit cannot be dismissed on the ground of non-joinder of necessary parties at this stage. He referred to the provisions of Order 20 Rule 14 C.P.C and submitted that in the instant case the defendant No.2 in his evidence as D.W. admitted that he is in possession of the suit property and the Learned Trial Court directed the defendants to deliver possession in favour of the plaintiff and as such the vendors who had sold the suit propeprty to the defendant concerned for a price cannot be said to be an affected party. The Learned Advocate for the appellants cited a decision reported at AIR 1936 Cal 167 in support of his contention that the vendor/transferor takes no part in the preemption proceedings and no notice is required to be served upon him and the transferor has no locus standi. The said Learned Advocate also relied upon the provisions of Section 9(1) of the West Bengal Land Reforms Act, 1955 and the provisions of Section 26 F (7) of the Bengal Tenancy Act, and submitted that the said vendors are not at all necessary parties. The said Learned Advocate also relied upon the provisions of Section 9(1) of the West Bengal Land Reforms Act, 1955 and the provisions of Section 26 F (7) of the Bengal Tenancy Act, and submitted that the said vendors are not at all necessary parties. Now, there cannot be any dispute with regard to the propositions of law laid down in the reported decisions cited by the Learned Advocates for the parties but the question is as to whether the vendors in the instant case, who had no subsisting right, title or interest in the suit property at the time of filing of the suit for preemption and when the defendant No.2 as D.W.1 has admitted that he is in possession of the suit property, were necessary parties to the suit or not. The facts and circumstances of the cases reported at 1998 (3) SCC 246 and 1992(2) SCC 524 were quite different and such reported decisions cannot be of any assistance to respondents. There cannot be any dispute with regard to the principle of law laid down in AIR 1963 SC 786 but such reported case also cannot be of any assistance to the respondents since this court is of the view, considering the decision reported at AIR 1936 Cal 167 and the relevant provisons of law, that the vendors are not necessary parties in the instant suit for preemption and in such suit effective order can be passed without impleading the vendors in the facts and circumstances of the instant case, as indicated above. This Court is also of the view that the Learned Lower Appellate Court laid undue emphasis on the fact that the description of the said sale-deed dated 9.1.1998 was not included in the plaint-schedule. The said sale-deed dated 9.1.1998 has been pleaded in the plaint and it has also been adduced in evidence and marked as an exhibit. This Court is also of the view that the Learned Lower Appellate Court laid undue emphasis on the fact that the description of the said sale-deed dated 9.1.1998 was not included in the plaint-schedule. The said sale-deed dated 9.1.1998 has been pleaded in the plaint and it has also been adduced in evidence and marked as an exhibit. With regard to the point raised by the Learned Advocate for the respondents that since the respondents are not strangers to the family of the plaintiffs and they have been in possession of the suit property for a long long time prior to the purchase as co-sharers the provisions of Section 22 of the said Act of 1956 does not apply and the suit is beyond the scope of the said provisions of law, this Court is of the view that there cannot be any dispute with regard to the fact that the defendant No.2 is not a class one heir of either Rakhal or Parbati and as such in terms of Section 22 of the Hindu Succession Act, 1956 the Class I heirs, that is the plaintiffs/appellants of their respective predecessors rightly applied for a decree for preemption in respect of the sale made in favour of the defendant No.2 by the vendors concerned and the suit is maintainable. With regard to point raised by the Learned Advocate for the respondents to the effect that the plaintiffs failed to prove their ability to purchase the suit property and the plaintiff/appellant No.2 having failed to prove her interest in such purchase of the suit property no decree could have been granted in favour of the plaintiffs, the Learned Advocate for the plaintiffs/appellants submitted that as per the direction of the Learned Trial Court the plaintiffs/appellants have already deposited the consideration money within the stipulated period of time and he referred to the provisions of Order 20 Rule 14 C.P.C and further submitted that Section 22 of the said Act of 1956 does not lay down that the consideration money has to be deposited on the date of filing of the suit. The said Learned Advocate cited the provisions of order 20 Rule 14 C.P.C. in respect of his contention that where a Court decrees the claim to preemption the decree shall specify a date on or before which the purchase money shall have to be paid. The said Learned Advocate cited the provisions of order 20 Rule 14 C.P.C. in respect of his contention that where a Court decrees the claim to preemption the decree shall specify a date on or before which the purchase money shall have to be paid. With regard to the point raised by the Learned Advocate for the respondents that Parbati had already gifted his property in favour of the Kajal and Basanti by a deed of gift and, therefore, Kajal and Basanti could sell the suit property to anyone and the provisions of Section 22 of the said Act 1956 is not applicable as there was no devolution of property of the intestate upon two or more Class I heirs, cannot be entertained in the facts and circumstances of the instant case. Such allegation with regard to the alleged deed has not been pleaded in the written statement and it will appear that the defendants in their written statement did not specifically deny the allegations made by the plaintiff in the plaint to the effect that upon the death of Parbati his widow namely Bisakha and two daughters (Kajal and Basanti) had inherited the properties left by Parbati. The Learned Advocate for the plaintiffs/appellants has submitted that it has been admitted by the respondents in their application under Order 41 Rule 27 C.P.C that the suit property was inherited by Basanti, Kajal and Bisakha on the intestate demise of Parbati. He further submitted that the alleged deed of gift has not been marked as an exhibit and as such the said document cannot be relied upon in this Court in the second appeal. Thus, the point raised by the Learned Advocate for the respondents before this Court is also without any force. With regard to the point of misjoinder of party raised by the Learned Advocate for the respondents reference may be made to the provisions of Order 1 Rule 13 C.P.C. In the written statement the defendants did not take any specific objection in this regard and from reading Section 99 C.P.C it appears to this Court that the suit cannot be dismissed on such ground. The submission of the Learned Advocate for the respondent that Bisakha did not inherit anything on the death of Parbati in view of the deed of gift is not tenable in the facts and circumstances of the case in view of the discussions made above. In any event, since the deed of gift has not been marked as an exhibit in the suit the same cannot be relied upon by this Court. The Learned Advocate for the respondents has not been able to show any provision of law by which it could be said that Birendra could not preempt the sale effected by Pasupati and Basanti could not preempt the sale effected by Kajal and Basanti even if such sale transactions are contained in one deed and one suit is brought by the said two persons, namely, Birendra and Bisakha. This Court does not find any impediment in the filing of the suit and/or maintainability of the suit in which the appellants are the plaintiffs. The Learned Trial Court could have granted decree in favour of Birendra and against the Defendant No.2 in respect of the transfer made by Pasupati and a decree in favour of Bisakha and against the defendant No.2 in respect of the transfer made by Kajal and Basanti as reflected in the deed dated 9.1.1998. The Learned Lower Appellate Court committed a substantial error of law in not affirming the decree passed by the Learned Trial Court only against the defendant No.2 and to the extent indicated above. This Court is of the view that the Learned Lower Appellate Court committed substantial error of law as indicated above and as such the impugned judgment and decree passed by the Learned Trial Court is required to be restored subject to some modifications. Since it appears from the materials on record that the purchaser of the suit property from the respective vendors happen to be Defendant No.2 only i.e. Rampada Halder. Since it appears from the materials on record that the purchaser of the suit property from the respective vendors happen to be Defendant No.2 only i.e. Rampada Halder. In view of the discussions made above the instant second appeal is allowed and the judgment and decree dated 30th August, 2006 passed by the Learned Civil Judge (Senior Divison) Baruipore, South 24 Paragana in title appeal No. 8 of 2004 is set aside and the judgment and decree dated 31.1.04 passed by the Learned Civil Judge (Junior Division) Second Court Baruipore in title appeal No.104 of 2000 is restored subject to the modification that the consideration money as shown in the sale-deed dated 9.1.1998 which has been deposited by the plaintiffs/appellants in the name of the defendants and in terms of the Learned Trial Court’s decree shall be treated to have been deposited in the name of the defendant No.2 only. The decree of the said Learned Trial Court is further modified to the extent that the defendant No.2 only shall execute a proper deeds of conveyance in favour of the plaintiffs/appellants respectively within two months from this date as the Learned Advocate for the plaintiffs/appellants has submitted that the said consideration money has already been deposited by the plaintiffs/ appellants in terms of the said decree passed by the Learned Trial Court within the stipulated time. In default of execution of the deeds of conveyance by the defendant No.2 within the stipulated time, the plaintiffs/appellants will be at liberty to get the said deeds passed by the Learned Trial Court of execution executed through Court. There will, however. be no order as to costs. Urgent Xerox certified copy of this judgment, if applied for, shall be given to the parties on compliance of usual formalities.