BISWAJIT DAS Vs. RUMA BARH

JUDGEMENT

(1.) This revisional application is directed against the order dated 26th June, 2009 passed by the learned civil Judge (junior division) 4th Court at Sealdah in title suit No. 6 of 2000 by which an application under Order XXVI Rule 9 of the Code of Civil Procedure is rejected.

(2.) The petitioners instituted the above mentioned title suit seeking for declaration of their title in respect of the property as described in Schedule 'A' to the plaint and further declaration for correction of names recorded by the revenue Authority in the revenue register. The opposite parties took the defence that the suit property was also a subject matter of the partition suit which was instituted between the predecessor of the plaintiffs/petitioners and other members of the family and the suit property was exclusively allotted to the plaintiffs of that suit and thus denied that the plaintiffs/petitioners have any semblance of right in respect of the suit property.

(3.) Initially application under Order VII Rule 11 and Order XIV Rule 2 of the Code was taken out challenging the maintainability of the suit which was allowed by the trial Court as a consequence whereof the suit was dismissed. The First Appeal against the said order was also dismissed but this Court while considering the Second Appeal set aside the judgment and decree and remanded the matter back to the trial Court for reconsideration upon giving an opportunity to the parties to adduce evidence. This Court observed that whether the suit property is a subject matter of the partition suit or not or whether the properties included in the partition suit and the present suit are identical or different is a matter which is required to be decided in the said suit.