B. Bhattacharya, J. - (1.) This first appeal is at the instance of Defendant No. 2A in a suit for partition and permanent injunction and is directed against the judgment and Decree dated March 30, 2000 passed by the learned Civil Judge, Senior Division, 2nd Court, Howrah in Title Suit No. 3 of 1995 thereby passing a preliminary decree declaring 1/3rd share of the Plaintiffs and proforma Defendants and 2/3rd share of Defendant Nos. 1 and 2 and also passing a decree for permanent injunction restraining the Defendants including the present Appellant from changing the nature and character of the suit property.
(2.) The suit was initially filed by the Plaintiffs for partition claiming 1/3rd share of the Plaintiffs jointly with proforma Defendant Nos. 3 to 15 in the suit property and restraining the Defendant Nos. 1 and 2 from changing the nature and character of the property and from transferring or alienating or encumbering any portion of the suit property. The suit property consists of Danga land. Bastu with structure and Doba measuring about 2 bighas 13 cottahs as also another Bastu measuring 26 decimals. The case made out by the Plaintiffs may be summarised thus: (a) the suit property orginally belonged to three co -sharers, namely Sudhir Kumar Dey, Sushil Kumar Dey and Madan Mohan Dey, each having undivided 1/3rd share in the property. The Plaintiffs and proforma Defendant Nos. 3 to 15 are the heirs of Sudhir. Madan Mohan Dey by a registered deed dated 28th February, 1983 sold away his undivided 1/3rd share in the property in favour of Defendant No. 1. Subsequently, the heirs of Sushil Kumar Dey by another registered deed dated 14th January, 1994 sold away their undivided 1/3rd share in favour of Defendant No. 2 and thus, the Defendant No. 1 and 2, the son and the mother, respectively, became owners of undivided 2/3rd share in the property. (b) The Defendant Nos. 1 and 2 having anticipated institution of the suit for partition, illegally tried to change the nature and character of the suit property and in collusion with eachother were trying to frustrate the case of the Plaintiffs by attempting to transfer, alienate and sell the suit property to the third party and to encumber the property and as such, the prayer for permanent injunction was also made in the said suit for partition. (c) Subsequently, by amendment of the plaint, the Defendant No. 2A, who is the husband of Defendant No. 2 and father of Defendant No. 1 was added with further allegations that Defendant Nos. 1 and 2 in collusion with the said Defendant No. 2A were trying to make illegal construction and unauthorised structure on the suit property and as such, the said Defendant No. 2A was added with modified prayer for restraining the Defendant No. 2A along with the other Defendants from changing the nature and character of the property and/or from transferring or encumbering any portion of the same. (d) The aforesaid suit was contested by Defendants by filing two sets of written statements, one by Defendant Nos. 1 and 2 and the other by Defendant No. 2A. In the written statement filed by the Defendant Nos. 1 and 2, they denied right, title and possession of the Plaintiffs in the suit property and according to them, the entire suit property was under occupation of Defendant No. 2A who was inducted as a tenant by Sushil Kumar Dey with the consent of his other two co -sharers during their life time and Sushil Kumar Dey used to collect rent from the said Defendant No. 2A for self and/or on behalf of other co -sharers including the predecessor -in -interest of the Plaintiffs. According to Defendant Nos. 1 and 2, the year of induction of Defendant No. 2A in the suit property was 1960 and from the year 1960, Defendant No. 2A had been running brick manufacturing business on the entire suit property as tenant under all the three erstwhile co -sharers as sole proprietor of his business under the name and style of 'Rathor Brick Works'. (e) The Defendant No. 2A also filed a separate written statement thereby asserting that he was a bona fide tenant and was running brick manufacturing business on and from the year 1960 to the exclusion of others as sole proprietor of the business under the name and style 'Rathor Brick Works' after paying rent to Sushil Kumar Dey and his brothers and the said Sushil Kumar Dey used to collect rent form him for self as well as on behalf of other co -sharers. The said Defendant No. 2A supported the claim of Defendant Nos. 1 and 2. (f) At the time of hearing of the suit, one of the Plaintiffs deposed on behalf of Plaintiffs while three witnesses namely, the Defendant No. 2A, one Samir Kumar Dey son of Madan Mohan Dey, one of the previous co -sharers and one Sita Ram Singh who claimed to have a business of brick manufacturing in the disputed property prior to 1960 deposed on behalf of Defendants.
(3.) The learned Trial Judge on consideration of the entire materials on record disbelieved the defence taken by the Defendants that the Defendant No. 2A was inducted as tenant in respect of the entire suit property for manufacturing brick and for running brick field business. The learned Trial Judge, thus decreed the suit for partition thereby declaring 1/3rd share of the Plaintiffs jointly with proforma Defendants and passing a decree for permanent injunction restraining the Defendant No. 2A from changing the nature and character of the suit property.;