- (1.) THIS first appeal is at the instance of the plaintiffs in a suit for partition and is directed against the judgment and decree dated 25th February, 1999 passed by the Civil Judge, (Senior Division), 3rd Court, Alipore, in Title Suit No. 9 of 1991 thereby dismissing a suit for partition filed by the appellants on the ground that all the properties left by the predecessor of the parties had not been brought into the hotchpotch of the suit and that the appellant no. 1 has no exclusive title in the property mentioned in the Schedule 'g' of the plaint.
(2.) THE following facts are not in dispute:-The properties mentioned in the schedule of the plaint was recorded in the name of Smt. Kamala Devi, the mother of the original parties to the proceedings. According to the plaint case, the father of the parties, namely, Prabhakar chattopadhyay, purchased the properties in the Benam of their mother and the said father transferred different portions of the property by various deeds of gift to the parties in suit. The first of such deed was executed on 11th August, 1961 in favour of Amal Kumar Chattopadhyay, one of his sons. On the selfsame day, by another deed, the said Prabhakar Chattopadhyay gifted a different portion of the suit property in favour of the plaintiff no. 1, his only daughter, conferring life estate therein. All the six different deeds were executed in favour of his different children at various points of time. The mother of the parties predeceased their father and the suit was filed after the death of their father.
(3.) THE plaintiffs prayed for the following relief in the suit: " (a) for declaration of plaintiff's no. 1's title (life interest) in respect of schedule "c" property and absolute title in respect of "g" schedule property particularly described in the schedule below; (b) confirmation of possession in "c" schedule property; (c) ejectment of the defendant No. 1 and khas possession of "g" schedule property and joint possession of Hall; (d) tentatively against the defendant no. 1 Rs. 5000/- towards mesne profits and damages and further recurring damages as may be ascertained by the Ld. Court on enquiry under Order 20 Rule 12 C. P. Code and Rs. 5/-tentatively for the present; ALTERNATIVELY (a) a preliminary decree of Partition of the Schedule "a" property declaring the 2/5th share of the plaintiff therein; (b) final decree for partition in terms of the report of the Commissioner for partition to be engaged in the event of failure on the part of the defendants to make amicable partition in terms of the preliminary decree; (c) Injunction; (d) Receiver; (e) Costs; (f) any other relief or reliefs, the plaintiff is entitled to in law and equity. " the suit was contested by the defendants by filing different written statements and some of the defendants supported the claim of the plaintiffs that the father was the real owner and the mother was a Benamder while the other defendants asserted that their mother was the real owner of the property. In the written statement filed by some of the defendants, it was alleged that all the properties recorded in the name of their mother were not brought in the hotchpotch. ;