SRI SITARAM KHAN Vs. SRI PRABIR KHAN

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India has been directed against order no. 80 dtd. 28/3/2019 passed by learned Civil Judge (Senior Division), 1st Court, Chinsurah. Petitioner herein as plaintiff filed suit for partition being Title Suit No. 208 of 2008 inter alia praying for a declaration that plaintiff and defendant Smt. Puspa Rani Khan, who is the wife of the brother of plaintiff Late Dibakar Khan, has 8 anas share each in the suit property. In the said suit defendant did not contest the suit. Said suit was decreed ex-parte on 28/5/2010. Thereafter, Sri Prabir Kumar Khan, the opposite party no 2 herein, claiming himself as son of defendant Puspa Rani filed an application under Order I Rule 10 of the Code of Civil Procedure for adding him as a party and also for setting aside ex-parte decree. Plaintiff/petitioner filed written objection against the said applications, but learned Trial Court by an order dtd. 2/2/2013 allowed the application for setting aside ex-parte decree and also added Sri Prabir Khan as defendant no.2 in the suit.

(2.) In the month of February 2013, defendant no 1 i.e. aforesaid Puspa Rani Khan filed an affidavit stating that her husband Dibakar Khan died on 6/5/2006 leaving behind their only son, the added defendant no. 2. Accordingly aforesaid added defendant no. 2, Prabir Khan filed written statement on 17/5/2013, denying the allegations made in the plaint, together with a counter claim to the effect that the deed dtd. 20/4/2008, executed by the mother of plaintiff in favour of plaintiff is void ab initio.

(3.) The plaintiff filed written statement against the counter claim filed by aforesaid Prabir and in the said written statement plaintiff contended that added defendant no.2, Prabir is not the son of defendant no. 1 Puspa Rani Kahn and her husband Dibakar Khan. Plaintiff specifically pleaded that defendant no. 2 has got no relation with Khan family and he is totally a stranger and he was not even adopted by his brother Dibakar or his wife i.e. defendant no. 1. In the said suit sister of the plaintiff filed affidavit-in-chief as PW-2, who stated that her brother Dibakar died without any issue.