MANORANJAN PRAMANIK Vs. GOURHARI PRAMANIK

JUDGEMENT

(1.) This appeal has been directed against the judgment and decree passed by Shri Milan Chatterjee, learned Additional District Judge, 3rd Court, Midnapore on 4.7.1997 in connection with Title Appeal No. 33 of 1996 affirming the judgment and decree dated 9.1.1996 passed by Shri G. C. Sarkar, learned Assistant District Judge, Tamluk, Midnapore in connection with Title Suit No. 90 of 1993.

(2.) The suit before the trial Court was for declaration and pre-emption alternatively for partition. The trial Court was pleased to decree the suit which was confirmed by the lower appellate Court.

(3.) Three plots namely plot No. 1307, measuring 32 decimal of Bastu land, plot No. 1303, measuring 7 decimal 'doba' (small pond) and plot No. 1297 measuring 16 decimal of tank are the subject matter of the suit. Those properties were owned and possessed by two brothers Rakhal and Bankim along with other co-sharers. It is claimed that those three plots are the undivided family dwelling house of those two brothers and the plaintiff is the son of Bankim. It is also claimed that the R. S. Record of right was accordingly prepared in their names. Bankim died leaving behind his wife, three sons namely Gourhari (the plaintiff), Mantu and Netai (defendant No. 6) and one daughter, Kumudini. Thereafter wife of Bankim died and her share was equally divided amongst her three sons and daughter. The other part of the plaint case is that Rakhal sold his share 31/2 decimal from plot No. 1307, 13/4 decimal of plot No. 1303 and 0.3 decimal from plot No. 1297 to the plaintiff and his brother Netai by virtue of sale deed dated 11.6.1985. Kumudini also sold her share in 'Kha' schedule property and other properties to her two brothers, Netai and Mantu by virtue of registered sale deed dated 24.6.1993. Netai sold his entire share in 'Kha' schedule property to the plaintiff by sale deed dated 25.6.1993. Thus, the plaintiff by way of inheritance and purchase got the 'Ka' schedule property and he was in possession of the same along with the defendant Nos. 6 and 7. The third part of the plaint case is that the defendant Nos. 1 to 5 have their homestead in different plots and they are strangers to the 'Kha' schedule property. It was ascertained by the plaintiff subsequently that Rakhal sold the land described in schedule Ka/1 to the plaint to the defendant Nos. 1 to 5 by virtue of two deeds dated 25.6.1992. It is claimed by the plaintiff that the property described in 'Kha' schedule to the plaint is the undivided family dwelling house of the plaintiff and defendant Nos. 6 and 7 whereas the defendant Nos. 1 to 5 are the stranger purchasers in respect of the said undivided family dwelling house. It is also the plaint case that the plaintiff approached the defendant Nos. 1 to 5 to purchase the properties described in Ka/1 schedule at the market price but the defendant Nos. 1 to 5 refused and hence the suit. The defendant Nos. 1 to 5 contested the suit by filling written statement in which all the material allegations were denied and it was, inter alia, stated that they have blood relations with the plaintiff and the defendant No.7 and they came from the common ancestor. It is also claimed by the defendant Nos. 1 to 5 that since purchase they are in possession of property in question by erecting construction and by using water of the suit tank and suit doba. It is also claimed by the defendant that the suit was bad for defect of parties so far the prayer of partition is concerned.