- (1.) The present appeal at the instance of the plaintiff/appellant arises out of a suit for partition. The judgment dated 28th March, 2007 and decree rendered by the Civil Judge (Senior Division), 3rd Court Alipore, in Title Suit No. 70 of 2004 have been assailed by the plaintiff. By the impugned judgment and decree the Trial Court decreed the suit in part in preliminary form only in respect of the property described in Schedule 'A' of the plaint and negatived the plaintiff's claim for partition with reference to the property described in Schedule 'B', 'C' and 'D' of the plaint.
(2.) Being aggrieved, the plaintiff brought the matter in appeal before this Court mainly on the grounds that the evidence adduced by the parties as regards Schedule 'B', 'C' and 'D' properties have not been properly appreciated and the learned Trial Court erred in excluding the aforesaid properties from the partition decree. It is the contention of the plaintiff/appellant that all the properties excepting 'A' schedule were acquired by the parties from their joint fund while they were residing in joint mess and as such, in view of Article 57 of the Mohamedan Law the presumption is that they are the joint properties of the parties so a decree for partition ought to have been passed in respect of the properties in Schedule 'B', 'C' and 'D'.
(3.) The point that poses determination is whether the properties described in Schedule 'B', 'C' and 'D' of the plaint are the joint properties of the parties?;