TAPAN KUMAR DUTT, J. - (1.) THIS Court has heard the learned Advocates for the respective parties and has considered the materials on record.
(2.) THE facts of the case, very briefly, are as follows: The plaintiff/respondent filed a suit against the defendant No.1/ predecessor -in -interest of the present appellants and the other respondent Nos.2 to 10 and the proforma defendant No.11/respondent. The plaintiff, in the said suit, prayed for a decree for declaration that the right, title and interest of the plaintiff and the proforma defendant in the suit property has not been affected by the deed in question of the year 1954 and also a decree for partition declaring 50% share of the plaintiff and the said proforma defendant in the suit property. The schedule A of the suit property is land measuring 22 decimals in a certain plot of land and 8 decimals in another plot of land. Schedule B of the suit property happens to be land measuring 15 decimals in a certain plot of land. The said suit was numbered as title suit No. 178 of 1997 and was placed before the learned Civil Judge(Senior Division), 2nd Court, Howrah. The case of the plaintiff/respondent was that the said schedule A property belonged to Mobarak Ali Mallick and the said Mobarak Ali Mallick died leaving behind his two sons, that is, Abdulla Mallick and Saifuddin Mallick; the said Abdulla Mallick died leaving behind one son Guljar Ali Mallick who is the proforma defendant No.11 in the suit and one daughter Salma Khatun who is the plaintiff in the suit. Plaintiff's case is that the plaintiff and the proforma defendant No.11 were minors at the time of death of their father Abdulla. Saifuddin Mallick died leaving behind the principal defendant Nos. 2 to 10 as his legal heirs and as such the plaintiff, the proforma defendant No.11 and the defendant Nos. 2 to 10 are co -sharers in the A schedule property. According to the plaintiff, the plaintiff and the proforma defendant No.11 have 50% share in the A schedule property and the defendant Nos. 2 to 10 have remaining 50% share in the suit property and they are in joint possession of the said A schedule property. The plaintiff's case is that the defendant Nos. 2 to 10 have allowed the defendant No.1 to possess the suit property in spite of plaintiff's objection and the said defendant Nos. 2 to 10 have disclosed that their predecessor has already sold the said property to the defendant No.1. The plaintiff obtained the certified copy of the deed of sale for the year 1954 on 02.05.1997 and came to know that the said Saifuddin Mallick had fraudulently executed a deed relating to the suit property described in schedule B to the plaint in favour of the defendant No.1 and that the plaintiff was not aware of the said deed prior to 02.05.1997. The plaintiff alleged that the said deed of sale is a void deed because Saifuddin did not obtain any permission either from the learned District Judge or from any competent authority regarding the sale of minor's property and that the plaintiff and the proforma defendant No.11 are still in possession of the suit property and the said deed of the year 1954 has not been acted upon. The further case of the plaintiff is that the defendant No.1 is a stranger/purchaser and the said defendant No.1 in collusion with defendant Nos. 2 to 10 threatened the plaintiff with dispossession from the suit property and they are interfering with the plaintiff's peaceful possession and enjoyment of the suit property. The further case of the plaintiff is that the defendant No.1 may be entitled to 50% share in respect of the B schedule property and the remaining 50% share devolves upon the plaintiff and the proforma defendant No.11. The plaintiff has further stated in the plaint that, alternatively, the plaintiffs including the said proforma defendant are co -owners with the defendant No.1 in the suit premises and the plaintiff claims partition relating to the suit property against the defendant No.1 in respect of the B schedule property. The plaintiff has alleged that the defendant No.1 refused to make partition of the suit property as described in schedule B of the plaint. The plaintiff has also alleged that the defendant Nos. 2 to 10 also refused to make partition of the suit property and the said defendants have been attempting to make construction on the undivided property by changing the nature and character of the same and hence the said suit was filed by the plaintiff.
(3.) THE said defendant No.1 contested the said suit by filing written statement denying the material allegations made in the plaint. The case of the said defendant No.1 is that he has purchased 15 decimals of land in two suit Dags out of total 30 decimals from Saifuddin Mallick and the plaintiff or the proforma defendant No.11 have no right, title, interest and possession in any part of the suit Dag Nos. 859 and 861 and the sale made by Saifuddin Mallick as guardian of the plaintiff and the proforma defendant No.11 was absolutely for legal necessity and for the benefit of the plaintiff and the proforma defendant No.11 who were minors at the material point of time and as such the aforesaid transfer made in favour of the defendant No.1 has been absolutely legal, valid and has been duly recorded in the finally published settlement records of right and the defendant No.1 has been paying taxes to the Panchayet and the State Government for the said purchased land. The further case of the defendant No.1 is that he has constructed a pucca two storied building on such purchased land and has been residing therein and he has also inducted premises tenant in the said building and has been collecting monthly rent from such tenants. According to the defendant No.1, the suit should be dismissed.;