DEBASHIS GHOSH Vs. SUBHAS CHANDRA GHOSH

JUDGEMENT

(1.) This application is directed against the order no.90 dated July 19, 2008 passed by the learned Civil Judge (Senior Division), Asansol in Title Suit No.107 of 1995 rejecting the petitioners application under Order 1 Rule 10(2) of the Code of Civil Procedure.

(2.) The short fact of the case is that the opposite party no.1 instituted a suit for partition being Title Suit No.107 of 1995 in the Court of the learned Assistant District Judge, Asansol against his two brothers claiming 1/3rd share in the suit property, as described in the schedule of the plaint. In that suit, the defendant no.1 filed a written statement but he did not contest the suit ultimately. During the pendency of the suit, the opposite party no.2 also appeared but he also did not contest the suit. Accordingly, the learned Trial Judge passed an ex parte decree for partition in the preliminary form on January 5, 2007 declaring 1/3rd share of each of the plaintiff, defendant no.1 and the defendant nos.(2a) and (2b) collectively. After passing of the said preliminary decree, the petitioner filed an application under Order 1 Rule 10(2) of the C.P.C. for addition of party of himself and his five brothers as defendants on the ground of devolution of interest of the petitioner and his brothers on the basis of a Will executed in their favour by the deceased original defendant no.2 in respect of his share in the suit property. That application was rejected by the learned Trial Judge by the impugned order. Being aggrieved, the petitioner has come up with this application.

(3.) Having considered the submission of the learned Advocate of both the sides and on perusal of the materials on record, I find that admittedly the property in suit, as described in the schedule of the plaint was inherited by the plaintiff, defendant no.1 and the original defendant no.2 (now deceased) in equal share. Thus, each of them inherited to the extent of 1/3rd share in the suit property. Preliminary decree had been passed ex parte accordingly, when the defendants though appeared in the suit did not contest afterwards. During the pendency of the suit, thereafter, on the death of the original defendant no.2, his heirs have been substituted as defendant nos.(2a) and (2b) in the suit. Thus, I find that interest of the defendant no.2 was fully protected by the preliminary decree passed by the learned Trial Judge.