PARIMAL CH. SAHA Vs. SMT. SNEHALATA SAHA

JUDGEMENT

(1.) This second appeal, under Sec. 100 of the Code of Civil Procedure , directed against the judgment & decree, dated 24.02.2010, passed by learned District Judge, West Tripura (first appellate Court) in Title Appeal No. 6/2009. The first appellate Court reversed the judgment & decree, dated 12.05.2009, passed by learned Civil Judge (Senior Division), Court No. 1, West Tripura, Agartala in Title Suit (Partition) 57/2004.

(2.) The fact, gathered from the pleadings of the parties, in short, is that the appellants and respondent No. 6, as plaintiffs and 1st party defendant, Rakhal Chandra Sana, since deceased, the predecessor of respondent Nos. 1 to 5, in Title Suit (Partition). 57/2004, were full blood brothers and they were co-owners of the suit land described in the schedule of the plaint. It is the admitted and undisputed case of the parties that the 5 brothers jointly purchased the land from their mother, Parasmani Sana, on 26.12.1988 and were jointly owning and possessing the same.

(3.) The appellants and respondent No. 6(hereunder mentioned as plaintiffs) instituted TS (partition). 57/2004 alleging that their brother Rakhal Chandra Sana, since deceased, the predecessor of the respondent Nos. 1 to 5, (hereunder mentioned as first party defdt.) was the eldest among the brothers and he was looking after the suit land and with the joint fund of the brothers a hut was constructed and three rooms of the hut were put on lease to different tenants Rs. 400.00 (Rupees four hundred) per month and the first party defedt. being the elder brother used to collect the rent from the tenants and distribute it to the plaintiffs. From Jan., 2003, Rakhal Chandra Saha stopped sharing of the rent, collected from the tenants and even after request made by the plaintiffs he did not part with the share of the plaintiffs and was denying the share and therefore, the plaintiff issued advocate notice, on 16.082003 and, thereafter, instituted the suit aforesaid, seeking partition of the suit land in equal shares.