IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1694 of 2006 GAFOUR MIAN, Son of late Rawayat Mian, resident of village – Reotith, P.S. Baikunthpur, District – Gopalganj. …Opposite party/petitioner. Versus 1. BIKRAMA RAUT, 2. SATYANARAIN RAUT. Both Sons of Saryug Raut, resident of village – Reotith, P.O. Reotith, P.S. Baikunthpur, District – Gopalganj. …Applicants/Opposite Party. 3. BHARAT RAUT, Son of Suraj Raut, resident of village –Reotith, P.S. Baikunthpur, District – Gopalganj. ….Opposite Party-Opposite Party. For the petitioner : - Mr. Naresh Chandra Verma, Advocate. For the O.Ps. : - Mr. Ram Kumar Singh, Advocate. ----------- 05/ 12.05.2009 Heard Sri Naresh Chandra Verma, Advocate for the petitioner and Sri Ram Kumar Singh, Advocate for the opposite parties. 2. The question of law which he has raised through the present petition is whether a case has to be registered a Misc. Case, if someone comes to seek a relief in the light of Section 22 of the Hindu Succession Act, 1956 or it had to be tried on a regular suit after registering it as such. In the present case the learned Munsif, Gopalganj registered a Misc. Judicial case bearing No. 2 of 2000 on presentation of a petition under Section 22 of the Hindu Succession Act and went on to decide it in the manner as indicated by the impugned order. - 2 - 3. Learned counsel for the petitioner has placed before me a single Bench decision of this Court reported in 2004(2) P.L.J.R. 190 Ram Udar Rai Vs. Ram Chandra Rai and another holding that if a person has taken pleas that it was only within the contemplation of one of the parties to transfer any property then in that case a Misc. petition could be registered, else in case of the transfer taking a final shape the suit has to be preferred because of the reason that on account of the existence of a transfer deed the court could be granting relief to the desirous party only after it had set aside the transfer deed declaring as void and could have further granted relief of right to pre-emption against another person. 4. The above argument was resisted by the learned counsel for the opposite parties by citing before me two decisions of the Court, one by a Division Bench of the Court rendered in the case of Bhola Nath Rastogi and others Vs. Santosh Prakash Arya and others reported in AIR 1975 Patna 336 and another single Bench decision of the Court rendered in Gopal Prasad Vs. Baushidhar Singh & Ors. reported in 2000(1) P.L.J.R. 233. - 3 - 5. I have gone through the decisions cited before me by the learned counsel for the parties. In the two decisions relied upon by the learned counsel for the Opposite parties the fact situation was that the transfer by one of the heirs of the deceased coparcener was in the realm of contemplation, it had not taken the real shape. Thus, the factual position appears different. In the case of Ram Udar Rai (supra) the fact situation appears akin to the present fact situation because in that case the transfer had taken the complete and final shape and the right to pre-emption was claimed under Section 22 of the Hindu Succession Act. The learned Judge rendering the decision in Ram Udar Rai (supra) after having noticed the provisions of Section 22 of the Hindu Succession Act gave his final opinion in paragraph 7 of the judgment and that I am tempted to quote:- “Sub-section (1) of Section 22 provides, inter alia, that if a person dies intestate and his interest in immovable property devolves upon two or more heirs specified in class I of the Schedule and if any one of the heirs proposes to transfer his - 4 - or her interest in the property, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. Sub-section (2) provides provision for determination of consideration money. Thus, technically, this section is applicable only in a case where one of the heirs proposes to transfer the land but it is well settled law that this provision is also applicable in the case of concluded transfer.” 6. Thus, as per the present fact situation which includes the transfer having taken the final shape a title suit could be the only remedy for the purpose of enforcing the right of pre-emption by seeking a further relief of declaration of the deed as void. 7. It was contended by the learned counsel appearing for the opposite parties by drawing the attention of the Court to Rule 459 of the Civil Court Rules, item no. 49, that an application under Section 22 of the Hindu Succession Act, 1956 had to be registered as Misc. Judicial case. That particular rule does not indicate as to what could be the fact situation so as to registering a case. That aspect - 5 - of the matter was properly noticed and decided by a Bench in Ram Udar’s case. That appears fully applicable to the facts of the present case. 8. The registration of the petition as Misc. Judicial case appears misconceived. There was no question of maintaining any such case as there could be a proper suit to be framed and presented before appropriate court seeking appropriate relief. 9. In the result, the impugned order is hereby set aside on account of being passed in lack of complete jurisdiction. The revision petition is allowed. The parties specially O.Ps. shall be free to bring a fresh suit before the appropriate forum. DKS/ (Dharnidhar Jha, J.)