D.K.Seth, J. - (1.) This appeal will be heard. No notice need be issued. Records need not be called for. In Re: CAN 5872 of 2003 When the application for interim order was taken up, Mr. Chatterjee, the learned Counsel for the respondents, appears and opposes the grant of interim order. Both Mr. Bhattacharya, the learned Counsel appearing for the appellants and Mr. Chatterjee, appearing for the respondents had made their respective submission on the application. Virtually both have addressed the Court on the merits of the appeal itself. Therefore, by consent of the parties, the appeal is treated as on day's list for hearing and is taken up for hearing and is disposed of as under.
(2.) It appears that 'A' Schedule property was purchased by the plaintiff Nos. 1 and 2 and the defendant No. 1 sometimes in December 2002. In the plaint, the date of purchase has not been mentioned. In paragraphs 4, 5, 6, 7, 8 and 9, the following statements have been made : "4. That the property described in Schedule-A originally belonged to Surya Narayan Mukherjee who transferred the property described in Schedule A in favour of the plaintiff No. 1 Smita Bhattacharyya, the plaintiff No. 2 Rina Paul and the defendant No. 1 Aneeta De. By virtue of the said transfer both the plaintiffs acquired 2/3rd undivided share in respect of the property described in the Schedule-A. 5. That the property described in Schedule A is a joint property among the plaintiffs Smita Bhattacharyya, Rina Paul and the defendant No. 1 Aneeta De. Joint possession is becoming inconvenient among the plaintiffs and the defendant No. 1. 6. That the property described in the Schedules B and C originally belonged to Puma Charan Addy. Purna Chandra Addy died leaving behind him his two sons Bimal Charan Addy and Gopinath Addy. Bimal Charan Addy died leaving behind him his two sons, the defendant No. 2 Sudhir Kumar Addy [predecessor of defendants 2(a) to 2(c)] the defendant No. 3 Sunit Kumar Addy and one daughter, Mira Banik and their mother or wife of Bimal Charan Addy i.e., Madhabilata Addy, Madhabilata Addy has since expired. 7. That by virtue of a Deed of Partition executed on 19.7.1962 by said Gopinath Addy and the heirs of Bimal Charan Addy and defendants No. 3 to 4 along with their mother Madhabilata Addy effected partition of the erstwhile joint properties including the properties described in Schedule B & C. 8. That by virtue of the Deed of Partition executed on 19.7.1962 the property described in Schedule "B" was allotted in favour of Gopinath Addy whereas the property described in Schedule "C " was allotted to Sudhir Kumar Addy, defendants No. 3 and 4 along with their mother Madhabilata Addy. The parties have transferred their properties (other than the suit properties) allotted to them or their predecessors by virtue of the Deed of Partition. 9. That at or about the time when the partition was effected there was no line of demarcation between B & C Schedule properties. Later in the year 1999, Sudhir Kumar Addy and the defendants No. 3 & 4 arbitrarily gave a partition wall. Such partition wall is not in accordance with the Deed of Partition dated 19.7.1962. The plaintiffs have repeatedly measured B & C Schedule properties and every time found that said Sudhir Kumar Addy and defendants No. 3 & 4 gave partition wall in excess of their share. The matter did not end there. Sudhir Kumar Addy and the defendants No. 3 & 4 have been bringing purchasers to sell their inflated portion."
(3.) On the basis of the allegation made in paragraphs 11 and 12, partition has been claimed. Paragraphs 11 and 12 arc quoted as under : "11. That it has already been mentioned above that the property described in Schedule-B was allotted to Gopinath Addy by virtue of Partition Deed dated 19.07.1962. Gopinath Addy died leaving behind him his son Sushil Kr. Addy. Before his death Gopinath Addy executed a Will and thereby bequeathed B Schedule properties as also other properties in favour of his son Sushil Kumar Addy, who applied for grant of Probate of Will of Gopinath Addy. It was registered as Probate Misc. Case No. 24 of 1990 in the Court of District Judge, Puri. During pendency of the Probate proceeding said Sushil Kumar Addy died leaving behind him his three daughters - Plaintiff No. 1 Smita Bhattacharyya then Addy as unmarried, Plaintiff No. 2, Rina Paul and the Defendant No. 1, Aneeta De then Addy as unmarried. The three daughters of Sushil Kr. Addy entered appearance in Probate Misc. Case No. 24 of 1990 and prayed for grant of Letters of Administration along with Probate to them. The Learned Civil Judge, Senior Division, Puri granted Letters of Administration along with Probate of Will of Late Gopinath Addy to the Plaintiff No. 1, Smita Bhattacharyya, Plaintiff No. 2 Rina Paul and the Defendant No. 1 Aneeta De then Addy, vide Probate Misc. Case No. 24/32 of 1990/1993. 12. That as such each of the Plaintiff No. 1 Smita Bhattacharyya, Plaintiff No. 2, Rina Paul and the Defendant No. 1 Aneeta De nee Addy has l/3rd undivided share in respect of the property described in Schedule B. Their joint possession was becoming inconvenient. Hence again on 03.02.2003 the plaintiffs requested the defendant No. 1 to effect amicable partition. The defendant No. 1 refused.";