- (1.) This revisional application is directed against the judgment and order dated November 29, 2014 passed by the learned Additional District Judge, 4th Court, Murshidabad in miscellaneous appeal No. 26 of 2011 reversing the order dated 4th April, 2011 passed by the learned Civil Judge (Senior Devision), Lalbagh in Partition Suit No. 184 of 2010.
(2.) The facts adumbrated in the said title suit are, inter alia, as follows;- That one Abu Khan owned and possessed 4.66 sataks plot of land out of 5.56 sataks, which is recorded in R.S. plot No. 49. The rest of 90 decimal of the land was recorded in the name of Srimanta Sarkar and Sadhu Charan Sarkar. The said Abu Khan at the time of his death left behind him surviving six sons, i.e., plaintiff and defendant Nos. 1 to 5 and two daughters who inherited the said property of their predecessor. The plaintiff/opposite party further claimed title by adverse possession in respect of 90 decimal of land comprised in the said plot. It is alleged in the plaint that the plaintiff/opposite party requested the other heirs of Abu Khan to amicably partitioned the estate left by the predecessor and after having refused by them, filed the Partition Suit being Partition Suit No. 184 of 2010. It is further alleged that the defendants in connivance with the officials of the Land Reforms Office/ Settlement Office have got their names mutated in the L.R. record without surviving notice upon the opposite party. Alleging that the defendants/ petitioners are contemplating to cut down the Mango trees and by digging holes or trying to construct a house on the western portion of the scheduled property, an application for injunction was taken out in the said suit.
(3.) In the written objection the defendants/ petitioners categorically stated that the plaintiff/opposite party is guilty of suppression of material facts inasmuch as after the death of the said Abu Khan, the parties executed a deed of partition and divided that land as per their share inherited under the Mohammedan Law. It is thus stated that the suit for partition is, therefore, not maintainable. It is further alleged that prior to the institution of the present suit, the plaintiff instituted Title Suit No. 73 of 2010 claiming relief of partition in respect of the selfsame property and the instant suit is barred by the principles of res judicata.;