ASHISH ALIAS PIKU DAS Vs. DEBABRATA ACHARYA

JUDGEMENT

(1.) The hearing stems from an application under Article 227 of the Constitution of India filed by the petitioner praying for revision of the order dated 28.06.2005 passed by the learned Additional District Judge, Second Court, Maldah in Misc. Appeal 26/2003 setting aside the order being No. 8 dated 28.10.2003 passed by the learned Civil Judge (Jr. Div.), First Court, Maldah in O.C. Suit No. 141/03.

(2.) The circumstances leading to the above application are that the petitioner's father Bibhuti Bhusan Das and his two brothers Bhupati Bhusan Das and Manindra Mohan Das were joint owners of 1/3rd share each of a bastu land appertaining to R.S. Plot No. 1389, Khatian No. 341, Mouza Phulbari, P.S. English Bazar, Maldah, as described in schedule 'Ka'. Bhupati died leaving behind four sons. The land was partitioned amongst Bibhuti, Manindra and the said legal heirs of Bhupati by a registered deed of partition dated 27.2.91, and 0330 sahasrangsha, as described in schedule 'Kha', fell in the share of Bibhuti who constructed a dwelling house thereon and gifted 100 sahasrangsha each to his two sons i.e. the petitioner and Pro-O.P. No. 2 by two deeds dated 30.04.2002 and 130 sahasrangsha to his unmarried daughter Pro-O.P. No. 3 by a deed dated 07.05.2002 and thereafter he died. No demarcated portion was given by the said three deeds to the petitioner and Pro-O.P. Nos. 2 and 3 who have been residing in the unpartitioned dwelling house of 'Kha' schedule property and there are common passages on the extreme south and extreme west of 'Ka' schedule. Pro-O. P. No. 3 sold her share in the undivided dwelling house by a registered deed dated 16.12.2002 to O.P. No. 1 who is trying to take forcible possession and make construction thereon. The petitioner instituted O.C. Suit No. 141/03 in the Court of learned Civil Judge (Jr. Div.), First Court, Maldah for declaration and injunction and filed another application under Order 39 Rules 1 and 2 read with Section 151, C.P. Code against O.P. No. 1 for injunction. The application for injunction was allowed on contest vide order dated 28.10.03 but reversed in Misc. Appeal 26/03 by the learned Additional District Judge, Second Court, Maldah by the impugned order dated 28.6.2003.

(3.) Being aggrieved by and dissatisfied with the said order, the petitioner has come up before this Court.