JANAH, J. - (1.) THIS appeal is by the defendant No. 3 and it arises out of a suit for partition, for permanent injunction and for possession on declaration of plaintiff's title to certain structure standing on the suit land. The plaintiff's case is as follows:
(2.) THE suit land described in Sch. Ka to the plaint being premises No. 47/2, Beliaghata Main Road, Calcutta, measuring 3 cottah 5 chhataks belonged to plaintiff's parents. Out of the said land plaintiff's mother received 3 cottahs of land by way of gift from her father. The remaining 5 chhataks of land was owned by the plaintiff's father. The plaintiff's father constructed a house with bricks and bamboos having a corrugated iron sheet roof on the western side of the aforesaid 3 cottahs of land. The plaintiff's parents along with the plaintiff and the defendants who are the plaintiff's brothers and sister used to live in the said structure. The plaintiff's father Benimadhab Das and the plaintiff's mother Panchubala died in the year 1950 within a very short interval. The pucca house described in Sch. Kha to the plaint was constructedby the plaintiff out of his own funds. The ground floor of the said house was constructed by the plaintiff between the years 1947 and 1949 and the first floor was constructed in 1956. The plaintiff is a railway employee. Before 1955 he was posted in Assam. In 1955 he was posted in Calcutta and his brothers except the defendant No. 3 Kashinath was in separate mess from him. The plaintiff had another brother Satyacharan who died childness and intestate in 1968. The 1/6th share of Satyacharan devolved on the plaintiff and the defendants and also another brother Ananta in respect of the property described in Sch. Ka to the plaint. Ananta sold his share to the plaintiff by a registered Deed dated Nov. 4, 1968. It was alleged that the defendant No. 3 Kashinath who was living with the plaintiff was given in marriage by the plaintiff in 1967. From Jan., 1968, the defendant No. 3 became separate in mess from the plaintiff and thereafter he began to ill -treat the plaintiff. It was alleged that the defendant No. 3 had been given licence by the plaintiff to reside in a portion of the pucca house but the defendant No. 3 with the help of the other defendants tried to dispossess the plaintiff from the entire house. As it had become difficult to live together the plaintiff started the present suit for partition of plaintiff's 7/18th share in the Ka Sch. property and for a declaration that the pucca two -storied house described in Sch. Kha to the plaint belongs to the plaintiff exclusively and for eviction of the defendant No. 3 therefrom. The plaintiff also prayed for an injunction restraining the defendant No. 3 from disturbing the plaintiff's possession in the Kha Schedule property. The suit was contested by all the defendants. The defence case is that in terms of a Deed of agreement of family arrangement executed by the parties in 1955, any party intending to sell his share is to give notice to the other co -sharers, and Ananta having sold his share to the plaintiff without such notice the transfer was void and illegal. It was alleged that the first floor of the pucca house described in Sch. Kha to the plaint was constructed during the lifetime of their parents between the years 1946 and 1949 out of the money and materials belonging to their parents. Those constructions included 2 pucca rooms, with a staircase, verandah, bath and privy and the plaintiff and the defendant No. 3 also made over some money to their parents towards the costs of construction of the said structure. It was alleged that the statements contained in the Deed of Settlement of 1955 regarding the funds out of which the construction was made wag not true. The defendants further case is that above the existing ground floor the defendant No. 3 constructed a room on the first floor with a verandah, staircase with C. I. Roof and also a garage on the back of the privy out of his own funds. It was further alleged that the plaintiff with his personal fund made construction of the mezzanine floor and another room on the bath and privy in 1963 -64. It was denied that the defendant No. 3 was living in the house described in Sch. Kha as a licencee of the plaintiff.
(3.) THE trial Court accepted the plaintiff's case in part namely, that out of the construction described in Sch. Kha to the plaint one room was made on the first floor and a garage was constructed by the defendant No. 3 with his own money and the same did not belong to the plaintiff. The trial Court found that the plaintiff by his purchase had acquired the share of the other brother Ananta and he had inherited 1/36th share of the other brother Satya Charan who died without any issue. The trial Court accordingly found that the plaintiff was entitled to 7/18th share in the property described in Sch. Ka to the plaint. The prayer for injunction was refused on the ground that the defendant No. 3 having been found to be a joint owner of the pucca house described in Sch. Kha to the plaint with the plaintiff, no injunction could be granted against the defendant No. 3. The trial Court, therefore, decreed the suit for partition. Against the said decision the defendant No. 3 alone has filed the appeal.;