- (1.) THIS is an appeal by an unsuccessful plaintiff against Order No. 6 dated July 6, 2006 passed by the learned Civil judge (Senior Division), Siliguri, in a suit for partition and for recovery of possession.
(2.) THE plaintiff/appellant instituted Title Suit No. 18 of 2006, inter alia, seeking a preliminary decree for partition declaring plaintiff's share of. 08 decimals of land described in the schedule 'b' to the plaint, final decree for partition and separate possession according to the report of the partition commissioner, recovery of possession in respect of. 05 decimals in R. S. Plot No. 406 as described in schedule 'c' to the plaint.
(3.) IT is alleged in the plaint that Kharga Bahadur Gurung, the father of the plaintiff, and Madhumaya Gurung, the grandmother of the plaintiff, were the recorded owners of the land appertaining to Revenue Settlement Khatian No. 413 of mouza Siliguri in the district of Darjeeling. They had 5 annas and 2 gandas shares each in the total land comprising in the said khatian measuring about 2. 62 decimals. They were in joint possession in respect of their 10 annas and 4 gandas shares in the total land appertaining to said khatian. On the death of Madhumaya, her share devolved upon Kharga Bahadur as her only heir and legal representative Kharga Bahadur Gurung, during his lifetime, executed a Will in favour of his son, that is, the plaintiff, in respect of all his properties including his share in the said land. The plaintiff, on the death of his father, obtained a probate of the said Will from a competent Court of Law. Mukhia Brombholal Shrestha was the recorded tenant in respect of the remaining land appertaining to the said Khatian No. 413. He transferred his share in favour of Shambhulal Shrestha and four others by a registered deed of gift dated November 24,1956. The donees accepted the gift representing Nepal gramin Bikash Samaj. The said Shambhulal Shrestha and others transferred their share to Mir Afsan Kabir Siddique and others, in their turn, conveyed the land to the defendant. The plaintiff was, therefore, possessing separately 45 decimals of land with specific boundaries by constructing his residential house in plot Nos. 406 and 407. On January 17,2006 the defendant had trespassed in to. 05 decimals of land in R. S. Plot No. 406 and forcibly dispossessed the plaintiff. Therefore, the defendant was possessing the said. 05 decimals of land, as described in schedule 'c' to the plaint as trespasser and the plaintiff prayed for recovery of possession of the said land. The land covered by schedule 'b' to the plaint had not been partitioned by metes and bounds and the plaintiff and the defendant were in joint possession of the same. In spite of requests made on several times for amicable partition of the lands described in the schedule 'b' and, also, to vacate the land described in schedule 'c' to the plaint, the defendant declined to accede to the request of the plaintiff.;