BITULJAN BIBI Vs. ABDUL KASEM SAHOW

JUDGEMENT

(1.) Challenge in this second appeal is the judgment and decree passed by the learned 11th Additional District Judge at Alipore on 29th May, 1989 in Title Appeal No. 499 of 1987 reversing the judgment and decree dated 28tth April, 1987 passed by the learned Munsif, 1st Court at Baruipur in Title Suit No. 155 of 1985. The suit filed by the plaintiff is for a declaration declaring partisan deed dated 07/12/1983 as fraudulent and made by misrepresentation. The case that has been made out by the plaintiff is inter alia as follows:

(2.) The plaintiff is the owner of the suit property which is described in (ka) schedule by purchase and inherited 2 annas share of the (kha) scheduled property which belonged to her husband. The defendant No. 1 is the eldest son of the plaintiff.

(3.) The defendant No. 1 thus inherited 2 annas 16 gandas share and other four sons (proforma defendant Nos. 2 to 5) got 11 annas 4 gandas share. The defendant No. 1 being the eldest son used to look after the joint property at (kha) schedule. The defendant No. 1 took the kotaala in respect of the 'ka' scheduled property from his mother, the plaintiff for the intended purpose of settlement of disputes with the neighbouring land owners whereafter defendant No. 1 disclosed to her that a partisan between the co-sharers in respect of their inherited 'kha' scheduled suit property only was effected and the plaintiff relying on such statement of her eldest son, defendant No. 1 executed such partisan deed which was also registered. Even after the execution of the partisan deed the plaintiff was enjoying share of paddy produced from her purchased land at 'kha' scheduled suit property and when the plaintiff did not receive her share of paddy in 1391 B.S. in respect of 'ka' scheduled property and asked defendant No. 1 for the reasons the defendant No. 1 disclosed that the plaintiff had no longer any share in 'kha' scheduled suit property. On obtaining the certified copy of the partisan deed dated 12.07.1984 it was found that the share of the co-sharers were not written therein according to their legal shares for which the plaintiff and the proforma defendant Nos. 1 to 5 executed the cancellation deed canceling the said partisan deed and as the defendant No. 1 got the said partisan deed fraudulently executed on his representation illegally including the plaintiffs land at 'ka' schedule, the present suit was filed for declaring the said partisan deed void.