- (1.) Plaintiffs are the appellants against this judgment of affirmation.
(2.) The plaintiffs filed a suit for partition being Title Suit No.26 of 2003 with the following averments:- Harisadhan Mondal, a common ancestor of the plaintiffs and defendant Nos. 1- 5, was the owner of A schedule property. Harisadhan Mondal died intestate leaving behind his three sons namely Banshilal Mondal, Nanigopal alias Nanilal Mondal and Charu Chandra Mondal who became co-owners to the extent of 1/3 rd share each in said property. The plaintiffs are the son and the daughter of Charu Chandra Mondal whereas the defendant Nos. 1 5 are the sons and the daughters of Banshilal Mondal. On death of Charu Chandra Mondal the plaintiffs became joint owners of 1/3 rd share in A schedule property and similarly after demise of Banshilal Mondal defendant Nos. 1 5 became joint owners of 1/3 rd share to said A schedule property. The B schedule property was recorded in the name of Nanigopal alias Nanilal Mondal, uncle of both plaintiffs and defendant Nos. 1 5. Nanigopal died issueless leaving behind his widow Kadambini Dassi. Kadambini Dassi accordingly inherited said properties of Nanigopal. Kadambini Dassi did not transfer any portion of said property to anybody. On her death the plaintiffs and defendant Nos. 1 5 each became entitled to 1/7 th undivided share in B schedule property. Plaintiffs and defendants Nos. 1 5 were accordingly in joint possession of the suit property. Defendant Nos. 6 15 were trying to intrude upon the suit property alleging that they purchased some portion of the same from defendant No.1. The deed of gift dated 27 th June, 1962 purported to have been executed by Kadambini Dassi in favour of the defendant No.1 was a fraudulent document as the alleged L. T. I. of Kadambini Dassi appeared in said deed was not that of Kadambini Dassi. Defendant No.1 had no right to sell the suit properties to the outsiders and that his sale, if any, should be limited within his share. The judgment and decree passed in Title Suit No.47 of 1954 by the learned Sub-ordinate Judge, third Court at Alipore is not binding upon the plaintiffs as neither the plaintiffs nor their father Charu Chandra Mondal was a party to the suit. The alleged deed of conveyance dated 16 th June, 1967 executed by Harendralal Sarkar is a fictitious document having no transferable right. The property as conveyed by said deed was a trust property which could not be transferred without the permission of the appropriate authority. As defendant Nos. 1 5 declined to make amicable partition of the suit property, the plaintiffs were compelled to file this suit for partition for declaring their 1/3rd share and 2/7 th share in respect of the properties described in Schedule A and B respectively and for partition of the same. Defendants should be restrained by a decree of permanent injunction from transferring and / or for changing the nature and character of the suit property till final decree is passed.
(3.) Respondent defendant No.1 only contested the suit by filing a written statement denying material allegations of the plaint and contending inter alia as follows:- The suit property never belonged to Harisadhan Mondal. A Schedule property was the absolute property of the Nanigopal alias Nanilal Mondal and his name was correctly recorded in C. S. khatian No.90 C. S. Dag Nos.651 and 652. Harisadhan Mondal or his other sons had no right, title, interest or possession in the A Schedule property at any point of time. The B schedule property was recorded in the C. S. record of right in the name of Nanigopal Mondal. Harisadhan Mondal and his other sons had also no right, title, interest or possession in said B schedule property. After the demise of Nanigopal alias Nanilal Mondal those properties devolved upon his widow Kadambini Dassi. Haisadhan Mondal s patta land of 12 cottahs taken from landlord Ishan Chandra Mondal on 11 th July, 1916 at an annual rental of Rs.2 was found to be 29 decimals in actual measurement and said land was recorded in C. S. Khatian No.161, Dag No.613 as Bastu land in the names of sons of Harisadhan Mondal. As said property comprised in Dag No.613 was not brought into hotchpotch of the suit, the suit was bad for partial partition. Kadambini Dassi after death of her husband Nanigopal alias Nanilal Mondal enjoyed the A schedule property and B schedule properties as well as her share in Dag No.613 being ancestral property of her husband and sold away certain portions of those properties to others. The remaining portion of the suit properties along with her share in Dag No.613 was transferred by Kadambini Dassi to the defendant No.1 by a registered deed of gift. Defendant No.1 accepted said deed of gift and also transferred some portions of the suit properties to different parties. During lifetime of Nanigopal alias Nanilal Mondal one Hirendralal Sarkar filed Title suit No.47 of 1964 in the Court of third Sub-ordinate Judge at Alipore against him for declaration of right, title and interest in respect of the lands in C.S. plot No.956, 960, 967, 951 and 804. Said suit was dismissed in the Trial Court. Hirendralal Mondal preferred an appeal. During pendency of said appeal Nanigopal alias Nanilal Mondal died and was substituted by his widow Kadambini Dassi. The Appellate Court allowed said appeal in part by declaring title of Hirendralal Sarkar in respect of those properties but recognized the tenancy right of Nanigopal Mondal and on his death his wife Kadambini Dassi and rejected the prayer for eviction of said tenant Nanilal Mondal and on his death Kadambini Dassi. Hirendralal Sarkar created a trust in respect of said property and other properties. However, the Appeal Court judgment created some anomalies as in the revenue records the name of Hirendralal was recorded as raiyat but that judgment of the Appellate Court declared the tenancy right of Kadambini Dasi being sole heir of Nanigopal. The purchasers of lands from said Kadambini Dassi when filed applications for mutation of their names with the office of J.L.R.O. their applications were rejected on the ground that said property stood in the name of Hirendra Lal Sarkar. These purchasers put pressure upon Kadambini Dassi as well as upon the defendant No.1 to make their title perfect so as to enable them to mutate their names in the revenue department. To resolve the problem this defendant by registered kobala dated 16 th of August, 1967 purchased said 4.48 acres of land from Hirendralal Trust Estate and Ashoke Das for valuable consideration. Thereafter, this defendant again executed fresh kobalas in favour of all the purchasers. As plaintiffs had no right, title and interest or possession in any portion of either A schedule or B schedule property they were not entitled to get any decree of partition and / or injunction.;