Decided on August 07,1970

Achhulal Saha Respondents


- (1.) This Rule was issued upon an application made in connection with F.A. No. 403 of 1968 which is pending in this Court. That appeal is directed against a decree dismissing a partition suit not on the merits but on a ground of maintainability for not obeying a condition that was imposed by an order of the Court.
(2.) The partition suit was instituted by the present Petitioner Mohanlal Gupta, a minor represented by his guardian mother Smt. Bachhia Debi, claiming partition of immovable properties which were described in Schedules A and B of the plaint. Schedule A comprised about 62 -49 acres of land and Schedule B comprised about 30.42 acres of land. The Plaintiff claimed l/20th share in Schedule A lands and 1 /5th share in Schedule B lands as a coparcener of a joint family governed by Mitakshara school of Hindu Law. He pleaded that there was a previous amicable partition whereby the Defendant No. 1, Achhulal Shah, who is the father of the Plaintiff, and his -four sons including the Plaintiff were jointly possessing a portion of the land mentioned in Schedule A of the plaint, but in the finally published Revisional Record of Rights those lands have been entered in the name of the Defendant No. 1 Achhulal Shah alone. In that partition suit along with other Defendants the State of West Bengal was joined as party Defendant.
(3.) That partition suit having been dismissed on the ground of maintainability of the suit the Petitioner has preferred an appeal in this Court being FA. No. 403 of 1968. It was filed on November 21, 1966. During the pendency of the appeal the present petition was filed on September 29, 19691 alleging that on behalf of the Defendant No. 13 in the suit is the State of West Bengal the Junior Land Reforms Officer of Harishchandrapur in the district of Malda and other officers of the State have been making preparations to take over possession of the entire land in suit as vested land. The overt acts alleged were that the officers of the State Government were about Co oust the Petitioner and his co -sharers from possession of the suit land by settling those lands with third parties. The Petitioner has, therefore, prayed that the opposite party No. 13, the State of West Bengal, be restrained by an injunction from taking possession of the suit lands described in Schedules A and B of the plaint and from settling those lands with any third party. The Petitioner has also prayed for such other or further order or orders as this Court may deem fit and proper.;

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