SANKAR GHOSH Vs. RAKSHIT KUMAR GHOSH

JUDGEMENT

(1.) This appeal has been directed against the judgment and decree dated 5.5.1998 and 30.6.1998 respectively passed by Sri M.K. Chowdhuri, Civil Judge, Senior Division, Diamond Harbour, South 24-Parganas in connection with Title Appeal No. 48 of 1997 reversing the judgment and decree dated 23.7.1996 passed by Sri A.N. Roy, learned Munsif, Second Court, Diamond, Harbour in connection with Title Suit No. 53 1987.

(2.) It appears from the record that the suit before the learned Munsif was for declaration and injunction. The learned Munsif was pleased to dismiss the suit on contest while the lower appellate Court reversed the judgment of the trial Court and having allowed the appeal decreed the suit.

(3.) The plaint case in brief is that the properties in plot Nos. 839 and 840 originally belonged to four brothers namely Ganesh, Priyanath, Sitanath and Lalmohan Ghosh. There was no partition of the suit plots amongst the four brothers. Suit plots consist of plot Nos. 831, 832, 833 and 834 out of which plot No. 833 is a tank and other three plots are danga. The non-suit plot Nos. 839 and 840 are the undivided family dwelling house. One Lalmohon, the predecessor-in-interest of the appellant/plaintiff had 1/4th undivided share in the suit property. The plaintiff/appellant has 1/8th share in the suit property. The non-suit plot being Nos. 839 and 840 are the part and parcel of the suit plots and the suit plots having tank and kitchen garden are being used by the plaintiff and the suit plots are necessary for the convenient and beneficial enjoyment of the non-suit plots of the undivided family on which dwelling house is situated. The defendants contested the suit before both the Courts below and denied all the materials allegations.