PRAFULLYA MONDAL Vs. KOLA BALA MONDAL

JUDGEMENT

(1.) The revisional application arises out of an order dated May 30, 2019 passed by the learned Civil Judge (Senior Division), 2nd Court at Alipore, District 24-Parganas (South), in Title Suit No. 58 of 2012. The learned Court below by the order impugned directed the Commissioner to measure the building ('B' schedule) as a part of the 'A' schedule property and to assess the valuation afresh. The cost of the Commissioner for measuring the building was directed to be paid by the defendants/opposite parties.

(2.) Title Suit No. 58 of 2012 is a suit for declaration partition and injunction. The petitioner is the plaintiff in the suit. The plaint case is that the suit property consisted of 12 sataks/decimals bastu land, 10 sataks/decimals pukur (pond) and 3 sataks/decimals of doba comprising in RS Dag Nos. 77, 77/867, 75 and 76 respectively, in Mouza Sampamirza Nagar, Police Station Maheshtala, District 24-Parganas (South). That originally the suit lands belonged to the predecessor-in-interest of the parties to the suit, namely Panchu Mondal alias Panchanon Mondal and his brother Atul Mondal. Both Panchu and Atul owned the property jointly each having moiety share. Panchu and Atul arrived at an amicable demarcation of the suit property, whereby Panchu started residing in the southern portion of Dag No. 77, and Atul occupied the northern portion. Panchu Mondal constructed a two storeyed dwelling house on the portion demarcated to be his share. The building has been described as the 'B' schedule property in the plaint. The plaintiff was the son of Panchu Mondal and the defendant No.1 was the wife and the defendant Nos. 2 and 3 were the sons of Atul Mondal. Panchu died on March 17, 1972. Prior to his death, he transferred his entire share of 50% in the suit property to the plaintiff by a registered deed of gift. On June 29, 1973, the plaintiff purchased 3 sataks/decimals of land appertaining to RS Dag Nos. 75 and 76 under Mouza Sampamirza Nagar, for his exclusive use as an access to his house from the municipal road. The said purchased property of the plaintiff had been described as 'C' schedule property. The plaintiff further contended that he was in exclusive possession of the 'B' and 'C' schedule property. When the defendants started creating disturbance in the plaintiff's enjoyment of the said property, the plaintiff filed the suit for declaration, permanent injunction and partition. The plaintiff's specific case was that 'A' schedule property measuring 22 sataks/decimals comprising of land and pond was an undivided property of which the plaintiff and the defendants were the cosharers. It was the further case of the plaintiff that on or about 6 sataks/decimals of the bastu land in RS Dag No. 77 in the 'A' schedule property, the predecessor-in-interest of the plaintiff constructed a two storeyed building from his own funds.

(3.) The defendants contested the suit by filing a written statement. It was contended by the defendants that the suit was not maintainable and was bad for non-joinder of necessary parties. That the plaint did not disclose any cause of action. It was further contended that the description of the suit property was vague and the share of Panchu Mondal was inherited by his two sons, namely, the petitioner and one Prafullya Mondal. The defendants also denied the peaceful and exclusive right and possession of the plaintiff in the respect of 'B' schedule and 'C' schedule property.