- (1.) THESE two appeals were heard analogously as those are preferred against the common judgement dated April 5, 2005 passed by the learned Judge, 9th bench, City Civil Court at Calcutta thereby disposing of two suits being Title Suit no. 634 of 1984 and Title Suit No. 1232 of 1991. By the said judgment, the learned Trial Judge dismissed the Title Suit No. 634 of 1984 but decreed the other title suit being Title Suit No. 1232 of 1991.
(2.) BEING dissatisfied, the plaintiff of the Title Suit No. 634 of 1984, who is also the defendant of the Title Suit No. 1232 of 1991, has preferred these two appeals.
(3.) SO far the Title Suit No. 634 of 1984, a suit for partition, is concerned, the case is made out by the plaintiff/appellant may be summed up thus: (a) One Md. Sakur was the owner of the two brick built houses situated on two cottahs and eight chittaks more or less comprising of 13 rooms therein being part of the premises no. 33b, Sharif Lane, P. S.- Park Street, calcutta as described in schedule 'a' to the plaint. (b) At the time of death of the said Md. Sakur, he left his wife, namely, Umran bibi, three sons, namely, (1) Zeenat Ali, (2) Rahamat Ali and (3) Md. Solaiman and two daughters, namely, (1) Jani Begum and (2) Lali Begum. (c) Immediately after the death of Md. Sakur on 1st day of March, 1972, all the aforesaid persons absolutely seized and possessed the aforesaid suit property being Thika tenanted land measuring one cottah seven chittaks more or less together with one storied brick built building standing thereon and also another Thika tenanted land measuring two cottahs eight chittaks more or less together with one storied brick built building. (d) After the death of Md. Sakur, his legal successors and heirs, mentioned above, were enjoying the right, title, interest and peaceful possession in those properties according to Mohamedan Law and the shares of those persons are as follows: JUDGEMENT_87_TLCAL0_2008Html1.htm (e) That the balance 22 paise devolved upon the minor youngest son of the said Md. Sakur, namely, Solaiman Ali, who, of late, died and after the death of the said Solaiman Ali, his share in the property devolved amongst the co-sharer of the deceased, the present defendants. (f)By virtue of inheritance, the abovenamed defendants and also the minor son Solaiman Ali were the only legal heirs of the said deceased Md. Sakur and accordingly, all the defendants including the minor viz. Salaiman Ali represented by her mother sold, transferred and assigned all their right, title and interest of the property to the plaintiff in respect of the Thika tenanted land measuring one cottah seven chittaks a little more or less together with one storied brick built building being premises no. 33b, sharif Lane and out of the abovementioned legal successors of the deceased Md. Sakur, the defendant no. 2, Zeenat Ali further sold, conveyed, transferred and assigned his entire share, as mentioned hereinabove, to the plaintiff which was mentioned in schedule 'b' for a consideration sum of Rs. 22,000/- by virtue of a deed of sale dated 1st october, 1981 which was registered before the Registrar of Assurances, calcutta. (g) According to the said conveyance dated 1st October, 1981, the plaintiff seized, possessed and enjoyed the right, title and interest and also the possession of the Thika tenanted land together with building thereon measuring one cottah seven chittaks more or less out of the abovementioned two buildings absolutely and uninterruptedly. (h) By virtue of the aforesaid deed of sale, all the defendants transferred and delivered their entire right, title and interest and also peaceful possession of the defendant no. 2's share of the schedule 'a' property to the plaintiff immediately after the execution of the deed of sale but the defendants did not pay any heed to the several requests of the plaintiff to deliver possession of the 'b' schedule and they avoided delivery of possession of the entire share of the defendant no. 2, in the schedule 'b' property to the plaintiff. (i) Though the plaintiff repeatedly requested the defendant no. 2 to deliver his entire share already transferred by virtue of the aforesaid deed of sale in favour of the plaintiff, all the defendants in collusion with each other did not deliver peaceful possession of the right, title and interest of the plaintiff and the plaintiff was compelled to serve a notice by registered post with A/d dated 9th December, 1983 through her lawyer to all the existing tenants in the suit property and the copy of such notice was also sent to all the defendants asking the tenants in the suit property to stop their payment of monthly rents till the schedule 'b' property was partitioned mutually between the defendants and the plaintiff. (j) In the fourth week of February 1984, the plaintiff along with her husband met all the defendants and asked them to make partition the suit property and deliver possession of the schedule 'c' property but the defendants refused and neglected to do the same. (k) The plaintiff, therefore, filed the suit for partition claiming preliminary decree for partition in respect of the 'b' schedule property according to the share of the property and for final decree and account of calculation of rent from the tenants. The suit was contested by the defendants by filing written statement thereby denying the material allegations made in the plaint. One set of written statement was filed by the defendant nos. 1, 3, 4 and 5 while defendant no. 2 filed another written statement. The first written statement was filed in the month of january, 1986 while the defendant no. 2 filed the written statement on 23rd february, 1991.;