- (1.) Challenging the judgment and decree passed by learned 1st Court of Additional District Judge, Midnapore on 15th September, 2000 and 9th November, 2000 (as per date of signature) respectively in Title Appeal No. 45 of 1996 affirming the judgment and decree passed by learned Munsif, 1 st Court at Midnapore on 3lst January, 1996 and on 19th February, 1996 (as per date of signature) respectively in Title Suit No. 226 of 1989, this second appeal was preferred by the principal defendant, which was admitted for hearing under Order 41 Rule 11 of the Civil Procedure Code by the order dated 19th June, 2003 passed by Division Bench (Coram: D.K. Seth & R.N. Sinha, JJ.) (as their Lordships were at the material time) by framing the following substantial questions of law for adjudication:- "(1) Whether non-joinder of three co-sharers out of six co- sharers in the property all being necessary parties is hit by the principle of the proviso to Order 1, Rule 9 of the Code of Civil Procedure in a suit for declaration of title and injunction where there was no finding as to partition of the suit property though partial partition was alleged by virtue of a deed, the interpretation where of did not lead to a partition to render the remaining three co-sharers not joined as parties as property but not necessary parties. (2) Whether the suit is hit by Section 34 of the Specific Relief Act in the absence of any prayer for partition in respect of a joint property seeking the declaration and injunction as against same of the co-sharers without making the other co-sharers parties to the proceedings."
(2.) This appeal has been contested by the plaintiff/respondent of the suit. Fact of the plaintiffs' case:
(3.) The suit property measuring 0.0325 decimal of land out of 0.13 decimal of land was allotted in favour of the plaintiff in terms of the registered deed of partition being No. 5741 dated 11th July, 1989, wherein the plaintiff of the suit, the principal defendant and the proforma defendants were parties. In the partition deed, suit property was mentioned as 'ga' schedule property. The principal defendant No.1 and proforma defendant No.2 got 0.0325 decimal and 0.0650 decimal of land respectively out of said joint property measuring 0.13 decimal of land and their portions were demarcated as Schedules 'kha' and 'ka' respectively of the registered partition deed. On the suit land i.e. on the 'ga' schedule land in the northern and eastern portion all on a sudden defendant No. 1 started to construction, which despite protest since was not stopped, the suit was filed praying for declaration of right, title, interest, possession and permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiff over the suit property and necessary direction to remove the illegal construction as made by the defendant No.1. Immediately on filing of the suit on 12th September, 1989, to identify the nature of construction, the plaintiffs' prayer for local inspection was allowed and the local inspection was held on 31st December, 1989.;