ARUN KUMAR BHAKAT Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is at the instance of the plaintiffs. They had instituted a suit in the Subordinate Judge's Court, Murshidabad inter alia, for a declaration that since 12th Magh 1358 B.S. the plaintiffs and the defendant Nos. 1-3 to 6 were no longer co-parcenars and that the persons mentioned in the schedule below the plaint owned the lands exclusively allotted to them and in the alternative also for partition of the plaintiffs ⅚th share, if it was found that there had been no previous partition by metes and bounds.

(2.) The plaintiffs' case,inter-alia was that their ancestors were residents of village in the District of Aran Bihar and they were governed by Mitakshara School of Hindu Law. Their ancestor Haralal Bhakat migrated from Bihar and settled in village Nayansukh within P.S Farakka in the District of Murshidabad According to the plaintiffs, Haralal Prasad and his descendants including the plaintiffs have all along retained their original personal law and at all material times they have been continued to be governed by Mitakshara School of Hindu Law. On the death of Haralal, the properties acquired by him had devolved upon his son, Nityananda. Nityananda had three sons, Bhagabanprasad, Jagadish and Jainarayan. who used to live in coparcenary the year 1344 BS. when the said three sons of Nityananda separated themselves and partitioned their joint properties, the plaintiffs further case was that Jagadish was the Karta of the Mitakshara coparcenary consisting of himself and his sons. the plaintiffs 1 to 3 were the sons of Jagadish The plaintiff No. 4 is the widow of Jagadish. The plaintiff No. 5 and the defendant No. 1, the daughters of Jagadish The plaintiffs averred that Jagadish and his co-parceners amicably partitioned the coparcenary properties and on 19th Magh. 1358 B.S. a memo of partition was drawn up showing the allotments of trip properties to the different co-sharers. Some of the co-sharers did not follow or obey the partition effected and the matter could not be settled amicably. Therefore on 6th Oct., 1958 a. suit for partition was instituted in the Court of the Subordinate Judge, Murshidabad. Same was disposed of by, a solenama decree which acknowledged that the previous partition has been effected in 12th Magh. 1358 B.S. and that since the said date there had been a disruption of the co-parcenary and each, party had been holding the land allotted to him as his exclusive property The state of West Bengal, however, disputed the said partition among the plain. tiffs and their co-parceners and treated them as members of a Mitakshara undivided joint family. Therefore, the plaintiff had been compelled to file the suit.

(3.) The State of West Bengal who alone contested the said suit denied that the predecessors of the plaintiffs or the plaintiffs themselves were governed by Mitakshara School of Hindu Law and that Jagadish Chandra Bhakat and his sons held any property as co-parceners The State also denied that there had been a partition on 12th of Magh, 1358 B.S, as alleged by The plaintiffs. According to the State, Jagadish Chandra Bhakat had 16 annas right, title and interest and he had retained lands within the ceiling limit by filing a B-form and his surplus lands had vested in the State. After notices under section 12(2) of the West Bengal Estates Acquisition Act was served for taking possession of his vested lands, Jagadish and others had filed an application in the High Court under Art. 227 of the Constitution of India winch was discharged The heirs of Jagadish Chandra Bhakat had also unsuccessfully moved this Court under Art. 226 of the Constitution of India. Thereafter, they filed the instant suit.