Bhaskar Bhattacharya, J. - (1.) This first appeal is at the instance of defendant No. 1, 2 and the heirs and legal representatives of defendant No. 4 and is directed against the Judgment and Decree dated 19th December, 1992 passed by the learned Assistant District Judge, Malda, in O.C. Suit No. 100 of 1983.
(2.) The plaintiffs-respondents filed the aforesaid suit thereby praying for the following relief: "(Ka) For a declaration that the decree of the said Partition Suit No. 28/60 is malafide, collusive, fraudulent and vitiated by fraud and void and that the plaintiffs have title and possession in the suit properties described in Schedule (Kha) below and for a decree for Permanent Injunction restraining the defendants from causing any obstruction in the title and possession of the plaintiffs and alternatively for a Preliminary Decree for partition after declaration of 7 as share in favour of the plaintiffs in respect of the properties in schedules (Kha), (Ga), (Gha) and (Una) and for Preliminary Decree for any share in favour of the plaintiffs as the Court thinks fit and proper and for a Final Decree by appointment of a Survey Commissioner by the Court if the defendants fail to make partition mutually within the time fixed by the Court. (Kha) For a Decree for any other relief or reliefs in favour of the plaintiffs as which the Court may deem fit and proper."
(3.) The case made out by the plaintiffs may be epitomised thus: (a) The suit property as mentioned in Schedule 'Kha' are owned and possessed by plaintiffs and one Sripada Karmakar. The plaintiffs and the said Sripada Karmakar were residents of East Pakistan and had landed properties there. For various reasons, the plaintiffs and the said Sripada Karmakar left East Pakistan and decided to live in India in the District of Malda and exchanged the properties situated in the East Pakistan with the properties described in schedule 'Kha' with Golam Mustafa, Memijan Beoa, Hafijuddin Ahammad, Imdadul Haque, Rokea Khatun, Hamidur Rahaman, Annari Khatun, Ansari Khatun, Halima Khatun, Gousal Ajam and Khodeja Beoa by a registered deed of exchange and had been possessing the property by virtue of the said deed which was registered on 16th March, 1968. Among the recipients, Madhusudan Karmakar is dead. The plaintiff nos. 1 to 7 are his heirs. The plaintiff nos. 1 and 2 were also parties to the said deed of exchange. Among the other recipients of the deed of exchange, Sripada Karmakar sold his entire right, title and interest in respect of the properties mentioned in the deed of exchange to the other plaintiffs by a registered deed of sale and divested himself of all his interests thereof and delivered possession to the plaintiffs. (b) The executants of the deed of exchange received the 'Kha' Schedule properties by virtue of a registered deed of partition among the co- sharers which was executed on 28th June, 1954 and R.S. Khatian was prepared according to the said deed of partition. As Dil Mohammad, the eldest son of Jalu Mondal died during the life time of his father, Rafiluddin, the only son of Dil Mohammad was given a share equal to the share of a son, by an wasiat. According to the said wasiat, Jalu Mondal and the other co-sharers gave a share to Kafiluddin and Kafiluddin's son Hafizuddin transferred his share to the plaintiffs by means of exchange and delivered possession to the plaintiffs. (c) Hafizuddin's brother Safi mutually gifted his negligible share to Hafizuddin and went to East Pakistan. Hafizuddin's sister also mutually gifted her negligible share to her brother Hafizuddin. The plaintiff nos. 1 and 2, Madhusudan Karmakar, Sripada Karmakar and Makhanlal Roy went through the deed of partition and the settlement Khatian and went to the place of the executants of the deed of exchange and found them in possession and with the consent of all the erstwhile co-sharers made the exchange. (d) Plaintiff Nos. 1 and 2 and Dulal Kumar Saha, defendant no.41, purchased the properties described in Item No. 2 of Schedule 'Kha' from Manijan Beoa, Hafizuddin Ahmed, Imdadul Haque, Maniruddin Mondal, Khodeja Beoa and Mohammad Hamehar Rahaman on 16th March, 1968 by a registered deed and have been enjoying and possessing the same and have been jointly possessing the pond in Dag No. 78 with other co-sharers by rearing and catching fish. (e) All the executants of the said deed of exchange have gone to East Pakistan and have got lands and houses there through exchange and have been residing there. They have no interest left in the suit properties. (f) At the time of execution of the said deed of partition, defendant nos. 1 and 2 were minors and their mother Sakhina Bibi was their guardian. Sakhina Bibi was a woman having knowledge in affairs relating to properties. She read over the deed of partition and after having fully acquainted with the contents of the same, according to her free will, put her L.T.I, on the said deed of partition on behalf of herself and as guardian of her sons and daughters and accepted the partition and on the strength of the said deed of partition the parties recorded their respective names in the R.S. Khatian. (g) When the defendant Nos. 1, 2, 3 and 4 went to take possession of the suit lands described in 'Kha' Schedule with the Survey Commissioner and bailiff appointed by the Court in the first part of September, 1983, the plaintiffs physically obstructed them. The defendant Nos. 1 to 4 told them that the said lands were awarded to them by the Final Decree passed in Partition Suit No. 28 of 1960 and they were entitled to take possession of the same. The said Execution Case number is 8 of 1965. (h) The defendant nos. 1 to 4 of the aforesaid partition suit got an exparte decree on 16th December, 1963 in collusion with the Hamedur Rahaman and others. At the time of exchange, none of the plaintiffs and the defendants of the said suit revealed about the said partition suit and in the Execution case the present plaintiffs and Chittaranjan Chowdhury, Mantu Charan Saha, Dulal Kumar Saha and Padma Rani Chowdhury were not included as parties. They got their shares from the parties to the aforesaid partition deed namely, Maniruddin Mondal, Imdadul Haque, Hafizuddin Ahmed and Memijan Beoa by the deed of exchange executed on 16th March, 1968 and have been possessing the property. They also obstructed it the time of execution of the decree. (i) In the said partition suit, the defendants stated in their written statement that the entire ancestral properties were not brought into hotchpotch and all the co-sharers sold the properties in their respective shares to third parties but the purchasers were not included as parties. In spite of those objections, the plaintiffs did not amend the plaint not did they bring all the properties in hotchpotch. (j) The plaintiffs of Partition Suit No. 28 of 1960 did not pray for setting aside the registered deed of partition nor did they pray for any declaration that they were not bound by the same. (k) During the pendency of Partition Suit No.28 of 1960, Chamru Mondal's son Sharifuddin died. But his daughter Halena Khatun was not included as an heir. Sharifuddin and his mother Adho Beoa got a share as heir of Sharif iddin's father according to the aforesaid registered deed of partition executed in 1954 and according to the said deed of partition Halena and her mother got two annas and two gondas share and they prayed for a decree for partition of their aforesaid share against the other heirs of Sharifuddin and alternatively, they prayed for partition of the entire property left by Jalu Mondal. The defendant nos. 1 to 4 of the present suit were defendant nos. 20 to 23 in that suit and the properties of Schedule 'Ka' of the said Partition Suit No. 29 of 1964 was inherited by Chamru Mondal's wife Adho Beoa and his son Sharifuddin as the heirs of Chamru Mondal on the strength of the deed of partition executed in 1954. By the decree passed in the said Partition Suit No.29 of 1964, the said deed of partition was declared as valid and the decree passed in Partition Suit No. 28 of 1960 was declared as null and void. In the said Partition Suit No. 29 of 1964 an order of temporary injunction was passed on 5th February, 1964 against the defendant nos. 20 to 23 to the effect that they should not be entitled to cause any obstruction in respect of the properties described in Schedule 'Ka' of the said suit. The said Partition Suit No. 29 of 1964 was decided on 21st February, 1966 and thus the plaintiffs are entitled to get a decree for permanent injunction and declaration of title in respect of the Schedule 'Kha'. The defendant nos. 1 to 4 went to execute the decree passed in Partition Suit No. 28 of 1960 through the Execution Case No. 8 of 1965 but due to obstruction, the bailiff could not give possession. ;