Ashim Kumar Banerjee, J. - (1.) BACKDROP
(2.) THE respondent no.1 filed a partition suit being T.S. No. 19 of 1992 in the 2nd Court of Assistant District Judge [(now Civil Judge) Senior Division], Contai, Midnapure inter alia, praying for partition against his own brother Satya Sankar Shyamal in respect of two properties inter alia claiming half share in A -1 scheduled land and B -1 scheduled land from the B -scheduled land. From the schedule it appears that A -scheduled land was a vast property being five acres out of which the property in schedule A -1 being a part of the same measuring about 19/3/8 decibel with regard to B -schedule property which was 24 decibel in total. B -1 schedule being a part of it would comprise 75/3/4 decibel. He also made the co -owners of the balance part of A -schedule property and B -schedule property as proforma defendants only for the purpose of appropriate adjudication. He claimed that the plaintiff was major and started earning since 1961 when the defendant no.1 was a minor and living under the guardianship of their father having no income of his own. The plaintiff purchased the properties from time to time from different vendors, last of which was made in 1968 when the defendant no.1, although a major, was still a student. The purchase was however made in the joint name of the plaintiff and the defendant no.1. In 1982 the plaintiff constructed a residential building in plot no.1057/2168 and the entire building was constructed out of his own earning. However, both the brothers resided together and the premises were in their joint possession. The plaintiff was working abroad. He was a Scientist by profession. Their father died in the year 1989. The father executed a Deed of Settlement (Nirupan Patra) during his lifetime. The plaintiff alleged that the said Deed was executed at the instruction of the defendant no.1. On perusal of the said Deed of settlement called as Nirupan Patra we find that the father expressed his strong displeasure against his eldest son being the plaintiff, even then gave him absolute right in respect of a particular property being 68 decibel of land in schedule appended thereto. The plaintiff constructed a house and the said house was in his exclusive possession. The defendant contested the suit and resisted partition inter alia on the ground that the plaintiff should have included the other property that was in his exclusive possession, as the same would belong to the joint family properties. He also denied the fact that the A -1 and B -1 properties were purchased exclusively by the plaintiff out of his own earning. He asserted that those properties were also joint family properties. However, the house was constructed exclusively by the defendant no.1 and as such he must be allowed to exclusively possess the same. The learned Judge rejected the contention of the appellant being defendant no.1. The learned Judge also rejected the contention of the defendant no.3 being the cousin brother that he had also right over plot no.199 and 2000 to the extent of 1/4th share. Pertinent to note, the defendant no.3 and 4 contended that their three sisters being DW 12, 13 and 14 also had share in the property. The learned Judge observed that the defendant no.3 could not produce any evidence in support of his claim to the extent of 1/4th share or the shares of his sisters. The learned Judge relied on the admission in the written statement that house on the plot no.199 and 200 was constructed by the plaintiff of his own. The learned Judge kept the said property out of the hotchpotch of partition. Learned Judge held that the house constructed on the scheduled land was a joint house of the plaintiff and the defendant no.1 having half share each. The learned Judge ultimately determined in the share of the parties to the extent that the plaintiff had half share in A -1 schedule land and B -1 schedule land and, accordingly, decreed the suit as against the contesting defendant no.1 and 3 and ex parte against the rest. Hence, this appeal by the defendant no.1. ARGUMENT Mr. Ghosal, learned counsel appearing for the appellant contended as follows : - i)The learned Judge failed to ascertain the respective shares of the parties and erroneously declared the share of the plaintiff only. Hence, the decree could not be sustained. ii)The suit should be remanded back to the learned Judge on limited count under Order 41 Rule 25 of the Code of Civil Procedure to ascertain the respective shares of all the parties.
(3.) ELABORATING his submissions, Mr. Ghosal contended that at least three defendants died during pendency of the suit and the plaintiff did not substitute themselves through their heirs. He further contended that the Nirupan Patra was not exhaustive in absence of the heirs of Nityananda not being a party to the same. Pertinent to note, Nirupan Patra was executed by father of the plaintiff and the defendant no.1 who was having half share in the property and the remaining unascertained half share belonged to Nityananda their uncle.;