SAMBHU NATH DALAL Vs. RADHARAMAN MIDDYA

JUDGEMENT

(1.) The appeal : This appeal arises out of a suit for partition passed by the Assistant District Judge, Bankura in Title Suit No. 78 of 1993 on 10th August, 1994. The facts of this case are almost admitted. The scope of challenge by the Appellants :

(2.) Mr. Roychowdhury, learned counsel appearing for the appellants, challenges the said judgment and decree only on one ground that the plaintiffs, who claimed title through Parulbala deriving title from Man Kumari, have acquired no interest in the property in view of the fact that the plot, which is numbered as 314, devolved upon Man Kumari, who, admittedly, bequeathed the same by way of gift in favour of Parulbala through a deed describing the same as plot No. 114. 2.1 The plaintiffs purchased the land from Parulbala. In the deed executed by Parulbala, the mistake in the description of plot number was mentioned. But in the suit for partition, the plaintiffs did not take any step either to apply for rectifition of the said mistake in the deed, nor any deed of rectification was obtained by them from Parulbala nor from Man Kumari, as the case may be. No specific prayer for declaration of title was asked for in the suit. The prayer (a) related to preliminary decree for partition declaring 5 annas share in the property. Therefore, Mr. Roychowdhury contends that the plaintiffs have acquired no title to the property, since the deed, where there was a mistake in the description of the property, did not convey the title thereof to the plaintiffs. Unless there is any rectification, no title can be claimed by the plaintiffs. Submission of the Respondents :

(3.) Mr. Mullick, learned counsel appearing for the respondents, pointed out that the defendants had also purchased three annas share of the same property from Parulbala. Therefore, they are estopped from disputing the title of Parulbala. He has also pointed out to the relevant portion of the judgment, which is at page 43 of the Paper Book. The learned counsel for the respondents has also pointed out that the learned trial Court had dealt with the said question and had found that this point has no foundation. Reply of the Appellants: