- (1.) This revisional application is directed against the order no. 174 dated July 18, 2016 passed by the learned Civil Judge (Senior Division), Malda in Partition Suit No. 176 of 1995, by which an application under Order XIV Rule 2 of the Code of Civil Procedure is rejected. The plaintiffs/opposite parties filed a suit for partition and separate possession. For the purpose of convenience in addressing the issues raised before this Court the reliefs claimed in the plaint are quoted hereinbelow: "(a) For preliminary decree for plaintiff no. 2 and 3's - /8/- annas share in the 'B' schedule land against the defendants; and (b) For final decree in termsw of preliminary decree by appointing advocate commissioner on failure of the defendants to amicably partition 'B' schedule suit land as per preliminary decree; and (c) For costs of the suit; and (d) For any other relief or reliefs to which the plaintiffs may be found entitled to in law and equity be passed in favour of the plaintiffs and against the defendants."
(2.) The plaint case proceeds that the land measuring 22 acre comprised in plot no. 177 within Mouza: Maheshmati, District - Malda was originally owned by Mohendra Nath Deb and his name is recorded in the R.S. Record of Rights. The said Mohendra Nath Deb had two brothers, namely Jagadish Deb and Prafulla Kumar Deb. It is alleged that Prafulla Kumar Deb during his lifetime separated himself and started living at Midnapur with his family. Jagadish Deb, a clerk attached to Malda Collectorate, used to stay at Ramkrishna Pally with Mohendra Nath Deb in the same house and in joint mess. Mohendra Nath Deb died on 28th February, 1965 leaving behind a widow, the plaintiff no. 1, and other three sons. It is further alleged that Jagadish Deb happened to be the brother-in-law of the plaintiff no. 1 and, therefore, was acting as guardian in the ejmali family and supported them from his salary. There was a partition of 'A' schedule land and building, by virtue of a registered deed no. 1980 dated 29th February, 1970 and 'B' schedule land out of 'A' schedule property was allotted in the exclusive allotment of Jagadish Deb. After getting 'B' schedule land and building by virtue of said partition deed he possessed the same until his death, which took place on 19th February, 1987.
(3.) It is further alleged that Jagadish Deb inducted one Rupendranath Bhadra as a tenant in the northern room of 'B' schedule building. After his death defendant no. 1 in collusion with the tenant, Rupendranath Bhadra, manufactured a collusive and fraudulent Will and tried to take the probate of the Will, but was unsuccessful. A proceeding was initiated by the said tenant for depositing rent before the Rent Controller, wherein the defendant no. 1 disclosed that Jagadish Deb gifted 'B' schedule land and building to him. Furthermore, after the death of Jagadish Deb, the plaintiff nos. 1 to 3 and defendant nos. 1 to 3 entered into an agreement on 26th March, 1981 and agreed that the 'B' schedule land and building will devolve upon plaintiff nos. 2 and 3 and defendant nos. 2 and 3 in equal share and also agreed to give right of management to plaintiff no. 2. A further allegation is made that the defendants thereafter are creating disturbance in the joint possession of the 'B' schedule land and seeks consequential order for injunction. Naturally the defendant nos. 1 to 3 are contesting the said suit denying all the averments made therein. From the meaningful reading of the plaint it appears that the plaintiffs by virtue of an agreement entered into in the year 1981 have traced their title in Ejmali pertaining to the property described in Schedule 'B' to the plaint. By taking out an application under Order XIV Rule 2 of the Code of Civil Procedure the petitioner wanted to impress the Court that since the partition deed registered in the year 1970 is sought to be impinged in the suit after a gap of so many years, the suit is barred and should be tried on the preliminary issue.;