SAMARJIT KR. MAJUMDER Vs. DEBABRATA MAJUMDER
HIGH COURT TRIPURA
Samarjit Kr. Majumder
Referred Judgements :-
SANT RAM NAGINA RAM V. DAYA RAM NAGINA RAM
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T.AMARNATH GOUD,J. -
(1.)Heard Mr. D.R. Chowdhury, learned senior counsel assisted by Mr. D. Deb, learned counsel appearing for the appellant. Also heard Mr. T.D. Majumder, learned senior counsel assisted by Mr. T. Halam, learned counsel and Mr. S. Bhattacharjee, learned counsel appearing for the respondents.
(2.)This is an appeal under Sec. 100 of the CPC against the judgment and decree dtd. 30/7/2018 passed by the learned Additional District Judge, Court No. 2, West Tripura, Agartala in connection with the case No. Title Appeal No. 18 of 2017 allowing the appeal of the appellant-plaintiff by modification partly setting aside the judgment and decree dtd. 20/2/2017 passed by the learned Civil Judge, Senior Division, Court No. 2, Wet Tripura, Agartala in case No. T.S. (P) 150 of 2012 granting partition of the suit land in 1/8th share except the land of the WILL (Exbt. C) bequeathed to the defendant No. 4, the appellant herein by his mother. At the time of admitting the appeal, the following substantial question of law was formulated by this Court:
"Whether the finding that the execution of Will is full of doubt and visited with suspicious circumstances is testament and the evidence as led by the beneficiary?"
(3.)The facts that would essentially be required for appreciating the substantial questions of law may be introduced at the beginning. Sri Debabrata Majumder, the respondent herein has instituted a suit for partition and declaration of right, title and interest in respect of their respective equal shares which they are entitled to. He has claimed that he defendant No. 4, the appellant herein, has undertaken a construction work whereby, the huts where he along with his family members used to reside have been totally guarded creating serious obstructions to their ingress and egress to go out of their hut and also to enter into their hut. He has further claimed that the appellant has no right to undertake any fresh construction works without the suit land being partitioned in equal shares amongst the co-sharers. As such, he has prayed to remove/demolish the building which the appellant, the defendant-4 has constructed during the pendency of the suit by way of granting mandatory injunction. After hearing the parties, vide judgment and decree dtd. 9/2/2018, the learned Appellate Court allowed the appeal and dismissed the suit observing as under:
"The plaintiff and the defendants to the suit are directed to make amicable partition of the suit land as mentioned above within two months from the date of this judgment. If the parties to the suit fail to make partition of the suit land amicably as indicated above, each party to the suit shall be at liberty to approach the Court for partition by metes and bounds with the help of Survey Commissioner to be appointed by the competent court, with a prayer for passing final decree.
Accordingly, the judgment and decree dtd. 20/2/2017 and 8/3/2017 respectively passed by the learned Civil Judge (Sr.) Division, Court No. 2, Agartala, West Tripura in connection with T.S.(P) 150 of 2012 is hereby set aside and the instant appeal filed by the plaintiff-appellant is allowed.
The instant appeal is thus disposed of."
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