ANIL CHANDRA BANERJEE Vs. GOPINATH MUKHERJEE

JUDGEMENT

(1.) THIS is an appeal against an order of the Subordinate Judge of Burdwan in a suit for partition.

(2.) IT appears that there were four brothers Bidhusekhar, Adyanath, Akul Nath and Kali Nath. It was alleged in the partition suit that Akul Nath and Kali Nath separated and Bidhusekhar and Adyanath were joint in property. Adyanath's widow Bhuban Mohini sued the heirs of Bidhusekhar, who was then dead, for a partition of the joint properties. It was numbered as Partition Suit No. 252 of 1931 and was filed on 21st February 1931. The suit was dismissed on 5th April 1933 and on an appeal being taken to this Court, being Appeal No, 148 of 1933, a preliminary decree was passed for partition by this Court on 8th June 1936. It appears that no further steps were taken towards the final decree in the Subordinate Judge's Court and the Subordinate Judge consigned the record to the record room by his order dated 10th December 1936. It appears that Bhuban Mohini died on 6th November 1943. At the time of her death, it is said that Kali Nath was dead and Akul Nath was the sole surviving reversioner. It appears that Akul Nath did not get himself substituted in the partition suit nor did he take any steps. On 26th January 1944, he transferred the properties he has inherited as reversioner to Gopinath Mukherjee who is the petitioner in this case and is the respondent in this appeal. Gopinath applied to be substituted in the suit and the defendants, that is, the heirs of Bidhusekhar filed an objection, The objection was fought out by defendant 4 who is the appellant before us. The Subordinate Judge refused the prayer for substitution by his order dated 31st -August 1945 and on revision proceedings being taken in this Court in Revision Case No. 94 of 1946 the case was sent back to the Subordinate Judge for decisions on the merits. The Subordinate Judge has now allowed substitution. He has held that Order 22, Rule 3 and Order 22, Rule 10, Civil P. C., do not apply. He has further held that Section 146 of the Code applies and he has allowed substitution under Rule 146 of the Code. The present appeal relates to that order.

(3.) THERE has been filed a petition to treat this as a petition in revision in case an appeal does not lie. We are, therefore, taking it up as a matter in revision under Section 115, Civil P. C.