- (1.) This first appeal is directed against a judgment and decree of dismissal of the partition suit passed by the Learned Assistant District & Sessions Judge, Kalna, Burdwan on 29th April, 1988 in Title Suit No.7 of 1983 at the instance of the plaintiffs/appellants.
(2.) The plaintiffs/appellants prayed for partition of various properties, mentioned in schedule 'A', schedule 'B' and schedule 'C'. Schedule 'A' andschedule 'C' comprise of immovable properties. Schedule 'B' comprises of movable properties. They claimed that originally the suit properties mentioned in schedule 'A', 'B' and 'C' of the plaint belonged to Krishna Chandra Ghosh, who died intestate in the year 1316 B.S. leaving behind 5 sons, namely, Sashi Bhusan Ghosh, Kunja Behari Ghosh, Bepin Behari Ghosh, Ashutosh Ghosh and Panchanan Ghosh apart from his widow Biraj Mohini. The plaintiffs are the heirs of the youngest son of Krishna Chandra Ghosh, namely Panchanan Ghosh. The defendant Nos. 1-19 are the heirs of the other four sons of the said Krishna Chandra Ghosh. The defendant Nos. 21-28 are the purchasers of certain properties mentioned in 'A' schedule of the plaint from some of the heirs of Krishna Chandra Ghosh. The plaintiffs/appellants claimed that after the death of Krishna Chandra Ghosh, disputes and differences developed amongst the family members of the heirs of the said Krishna Chandra Ghosh and as such the heirs of Krishna Chandra Ghosh mutually partitioned the 'A' schedule property for the convenient enjoyment of all those properties by the descendants of Krishna Chandra Ghosh.
(3.) They further claimed that while making such arrangement, no property was given exclusively to the widow of Krishna Chandra Ghosh, namely, Biraj Mohini. She was given the properties described in schedule 'C' for her maintenance during her life-time. The plaintiffs/appellants further claimed that the 'A' schedule properties were never partitioned by metes and bounds amongst the descendants of Krishna Chandra Ghosh, who mutually agreed to enjoy their respective allotments for convenient use and enjoyment thereof. They further claimed that under the said arrangement, Sashi Bhusan received landed properties of 9 acres and 11 decimals mentioned in schedule A(I) of the plaint, Kunja Behari received 7 acres and 16decimals as mentioned in schedule A(II), Bepin Behari received 4 acres and 89 decimals mentioned in schedule A(III), Ashutosh received 8 acres and 32 decimals as mentioned in schedule A(IV) and Panchanan received 7 acres and 96 decimals as mentioned in schedule A(V) inclusive of an area of 3 acres and 32 decimals of 'C' schedule property baring plot No. 683(0.14) decimals and plot No.634(0.16) decimals thereunder. Both the C.S record of rights and R.S record of rights were prepared showing those 5 sons of Krishna Chandra Ghosh as owners of their respective allotments and their separate possession in respect of their respective allotments were also recorded in column No.23 of the C.S record of rights. They claimed that the said arrangement cannot be regarded as an equitable partition as allotment of land was made to the descendants of the said Krishna Chandra Ghosh disproportionate to their share which they inherited from their predecessor in the suit property and such disproportionate allotment according to the plaintiffs/appellants was made by mistake and as such they claimed that the said mutual arrangement which was made between the parties does not amount to partition by metes and bounds. They thus claimed partition of the 'A' schedule property by metes and bounds after declaring their 1/5th share in the suit property which they inherited from their predecessor in interest, namely, Panchanan Ghosh, being the youngest son of Krishna Chandra Ghosh. Similarly, they claimed 1/5th share in the 'B' schedule property which comprises of movable properties belonging to Krishna Chandra Ghosh.;