- (1.) This revisional application is directed against an Order No. 8 dated 3rd March, 2016 passed by the learned Civil Judge (Junior Division) 6th Court, Howrah in Title Suit No. 192 of 2014 by which an application under Order 7 Rule 11(d) of the Code of Civil Procedure is rejected. Shorn of unnecessary details, the plaintiff / opposite party filed the aforementioned suit claiming decree for declaration of her undivided 1/3rd share in the property described in Schedule A to the plaint with further declaration that the encumbrances to the extent of 16 annas share of the suit property created by the defendant nos. 1 and 2 in favour of the defendant no. 3 is illegal, unauthorized, voidable and not binding upon the plaintiff and permanent injunction restraining the defendant no. 3 from selling the suit property or taking possession of the same to the extent of 16 annas.
(2.) The case made out in the plaint are that the suit property originally belonged to one Ashalata Sarkar, since deceased, who was the mother of the defendant nos. 1 and 2 by virtue of the registered sale deed dated 28th February, 1958. The mother died intested on 5th April, 2002 leaving behind the plaintiff and the defendant nos. 1 and 2 as her heirs, who succeeded to the estate left by her each having undivided 1/3rd share therein. The suit property is surrounded by a pucca boundary wall on all sides having its entrance on the road side. The said property has not been partitioned by metes and bounds and therefore is still in joint possession of the aforesaid parties. On 6th July, 2014, when the petitioner inspected the suit property and in course of a discussion with the defendant nos. 1 and 2 found a notice issued by the defendant no. 3 / bank affixed on the outer wall containing a declaration that the said property belongs to the bank and borrowers / guarantors are cautioned not to deal with the same.
(3.) The petitioner further came to learn that the suit property had been encumbered by the defendant nos. 1 and 2 to the defendant no. 3 claiming themselves to be the absolute owners thereof. The petitioner apprehended that the suit property might be sold in auction by the defendant no. 3 and therefore a cloud was created on undivided 1/3rd share in respect thereof and therefore it becomes necessary that the declaration of such undivided right, title and interest be declared by the Court. It becomes also necessary to claim that the documents relating to encumbrances in favour of the defendant no. 3 by the aforesaid defendants be declared illegal and not binding on the petitioner to the extent to her undivided 1/3rd share.;