HARI SATYA BANERJEE Vs. MAHADEV BANERJEE

JUDGEMENT

(1.) This is an appeal from an appellate decree. Defendant no. 1 and defendants Nos. 3 to 10 are the appellants before us. It arises out of a suit for partition on declaration of plaintiffs 2/3rd share in the suit properties. The suit properties were 11 plots of land appertaining to 4 khatians set out in the plaint schedule. Of these 11 plots 3 plots have been excluded from the suit concurrently by the two Courts upon a finding that in respect of these 3 plots, the plaintiff had failed to make out any case for partition. These 3 plots are Dag Nos. 4882, 4884 of khatian No. 860 and Dag No. 4519 of khatian No. 826. As regards the rest eight plots in suit viz. plots Nos. 4885, 4886, 4941, 4995, 4949, 4950 of khatian No. 860, plot No. 294 of khatian No. 862 and plot No. 4766 of khatian No. 908 while the trial Court decreed the suit declaring 1/3rd share in favour of the plaintiff overruling the plaintiff's claim of acquisition of the other 1/3rd share from defendant No. 2, the Court of appeal below decreed 2/3rd share in favour of the plaintiff upholding the plaintiff's claim of acquisition of such share.

(2.) The plaintiff's case shortly was that the suit properties along with other properties once belonged to one Ashutosh Banerji and on his death such properties were inherited by 3 sons of Asutosh, namely, Hari satya (defendant No. 1). Gadadhar, since deceased, father of Jiban Santi (defendant No. 2) and Mahadev (plaintiff). The maternal grandmother of Jiban Santi, Jalad Barani Debi instituted Title Suit No. 50 of 1945 on behalf of the minor for partition of the properties inherited by the minor constituting the estate of Asutosh. Such suit was decreed on compromise on June 28, 1946, and all the properties left behind by Ashutosh were partitioned between the parties except the properties set out in Schedule D to the compromise petition (Ext. F) which was left Ejmali between the three co-sharers. According to the plaintiff, the suit properties are the properties incorporated in the said Schedule D of the compromise decree which were left joint between the parties. The plaintiff claims 1/3rd share by inheritance from Asutosh and the other 1/3rd share by two purchases from defendant No. 2. The first of such purchases by the plaintiff was effected on Sept. 11, 1946 (Ext. 1) when the said Jalad Barani as the guardian of the minor sold the 1/3rd share of the defendant No. 2 in 3 out of the suit plots, namely, plots Nos. 4945, 4949 and 4950 in favour of the plaintiff. The deed of sale (Ext. 1) recites that such sale was being effected for the legal necessity of the minor of repaying the loan incurred for conducting the partition suit and meeting the medical expenses for the minor. The minor Jiban Santi attained majority on April 1, 1949. Second of such purchases by the plaintiff was made directly from defendant No. 2 on January 27, 1960 by the sale deed Ext. la whereby the said defendant conveyed not only the 3 plots originally conveyed by his maternal grandmother on his behalf but also 6 other plots, being 4885, 4886, 4941 of khatian No. 860, plot No. 4887 of khatian No. 861, plot No. 2941 of khatian No. 862 and plot No. 4766 of Kb. 90S. By these two purchases, the plaintiff claimed to have acquired 1/3rd share in the suit property which originally belonged to the minor Jiban Santi, his nephew.

(3.) The two Courts below have con-currently found that plots Nos. 4882, 4884 and 4519 were neither covered by Schedule D of the compromise decree nor covered by the two purchases made by the plaintiff from defendant No. 2 and on such a finding those 3 plots have been excluded from file suit. Such a finding has not been challenged by either of the parties. The dispute now before as is limited to 8 plots out of the plaint schedule.