- (1.) This application is at the instance of the plaintiffs and is directed against the order no.30 dated June 16, 2009 and the order no.57 dated June 17, 2010 passed by the learned Civil Judge (Junior Division), Second Court, Alipore in Title Suit No.17 of 2006.
(2.) The short fact is that the plaintiffs/petitioners herein filed the said title suit being Title Suit No.17 of 2006 praying for several counts of declarations, permanent injunction and other reliefs. The contention of the plaintiffs is that they are the joint 50% owners in respect of the 3 storied building at 10/1/C, Swinhoe Street under Police Station Gariahat, Kolkata 700 019. The defendant / opposite party is the wife of late Saroj Kumar Mazumdar and the latter was the uncle of the plaintiffs. The suit properties originally belonged to late Kamal Basini Mazumdar and by a deed of gift dated August 30, 1967, she gifted the said property in equal shares to the plaintiffs jointly to the extent of 50% and to one Binay Krishna Mazumdar, paternal uncle of the plaintiffs to the balance 50% share and thus, the plaintiffs became the 50% owners of the undivided properties including the suit premises, as described in the schedule to the plaint.
(3.) Thereafter the Binay Krishna Mazumdar executed a Will on November 18, 1983 in favour of his daughter, proforma defendant and that Will was duly probated. Thus, she became the rest 50% owner of the properties. The husband of the defendant resided permanently in England and he seldom came to India. He died in England on May 5, 2001 leaving behind his wife and a son as heirs. During his visits to India, Saroj Kumar Mazumdar stayed with the plaintiffs and for that reason, under different declarations, Saroj Kumar Mazumdar was allotted the suit premises with a right to reside therein whenever he visited India. At that time, the plaintiffs were minors and for that reason, the mother of the plaintiffs signed the deed of declaration on behalf of the two minors. Saroj Kumar Mazumdar was given the right of residence in the suit premises, which was nothing but a leave and licence. After the death of Saroj Kumar Mazumdar, his wife, defendant gave an advertisement in the newspaper for sale of the suit premises. At that time, the plaintiffs have challenged the right of the defendant and filed the suit for the reliefs already stated.;