KHUDIRAM MAITY Vs. BISHNUPADA MAITY

JUDGEMENT

(1.) Title Suit No. 4 of 1978 was filed by the plaintiffs in the 3rd Court of the learned Subordinate Judge, Midnapore. That was a suit for partition. After hearing both. the parties and on going through the record, the learned Subordinate Judge dismissed the suit on contest against the contesting defendants and ex parte against the rests. The plaintiffs have preferred this appeal against that judgment and decree of the learned Subordinate Judge, dismissing the suit.

(2.) Admittedly the suit properties - the Ka, Kha, Ga and Gha schedule properties - originally belonged to one Bikram Maiti, who died in or about 1300 B.S. Bikram left two sons, Pitambar and Trailakya. Pitambar died in 1316 B.S. and Trailakya died in 1331 B.S. Mukundaram was the son of Pitambar. Mukundaram died in 1355 B.S., leaving five sons (defendants 1 to 4 and Haripada and two daughters, (the defendants 5 and 6). Mukundaram had another son, Haripada, who died in 1357 B.S. Haripada left no issue. Rajbala, the widow of Haripada, died in 1364 B.S. So that, according to the genealogy, the interest of Mukunda developed upon the defendants 1 to 6. Giribala, the wife of Trailakya, died after him. Sashi and Satish were the sons left by Trailakya. Charubala was the wife of Sashi, Satish is the plaintiff No. 2, Khudiram, the plaintiff No. 1, is the son of Sashi. Charubala, the wife of Sashi, died sometime 1981. So, aocording to the plaintiffs, the plaintiffs 1 and 2 acquired 8 annas interest in the ancestral properties and the defendants 1 to 6 got the other 8 annas share. It was pleaded by the plaintiffs that the properties all along remained joint, although the records of right were somehow misleading. Some plots were recorded as ejmali and some plots were recorded in the exclusive possession of this or that party. According to the plaintiff, the parties, in accordance with their shares, let out two korfa tenants. Ultimately, the korfa tenants relinquished their interest, On the premises that the suit properties were never partitioned by metes and bounds, the plaintiffs claimed 8 annas share in the properties and prayed for a partition decree accordingly.

(3.) The defendants 1 to 6 filed one written statement. They pleaded that the suit was bad for non-joinder of parties. Specially, they submitted that Charubala, the mother. of the plaintiff No. 1, was a necessary party in the suit. It was also their case that the properties, except some 9 plots, were partitioned long before, in between 1304 B.S. and 1310 B.S. The properties having already been partitioned, as the defendants urged, there could not be any question of further partition. The defendants 55 to 58, the defendant No 61, the defendants 39 to 41, the defendant No. 54, the defendant Nos. 59 and 60, filed separate written statements. They are the subsequent purchasers from the sons of Mukundaram. They supported the case of the defendant Nos. 1 to 6.