RABINDRA NATH DAS Vs. SHIBNATH DAS

JUDGEMENT

(1.) THIS first appeal is at the instance of a plaintiff in a suit for partition and is directed against the judgment and decree dated 20th February, 2001 passed by the Civil Judge, (Senior Division), Sealdah, in Title Suit No. 142 of 1995, thereby declaring the one-fourth share of the parties in the suit property.

(2.) BEING dissatisfied, the plaintiff has come up with the present appeal. Mr Roychowdhury, the learned senior advocate appearing on behalf of the appellant, did not dispute any findings of the learned Trial Judge except his finding with regard to Serial No. 3 of the Schedule, which is 23, South Sinthee road. It appears that the learned Trial Judge in the preliminary decree has declared that the area of the premises No. 23, South Sinthee Road is more or less 5 bighas and half. According to Mr Roychowdhury, the learned Trial Judge totally misread the materials on record in arriving at such conclusion. Mr roychowdhury contends that premises No. 23, South Sinthee Road contains 5 bighas and half of land and in addition to that, there are further land of 40 cottahs which are meant for construction of common passage. Mr Roychowdhury submits that the learned Trial Judge erred in law in not passing any decree in respect of that common passage.

(3.) MR Palit, the learned advocate appearing on behalf of the respondent, on the other hand, has opposed the aforesaid contentions and has contended that it would appear from the materials on record that the said Item No. 3, namely, the premises No. 23, South Sinthee Road, originally contained more or less 8 bighas of land and a godown but subsequently, all the parties transferred 29 decimals of land out of the said premises to four different persons and for selling that 29 decimals of land, further 40 decimals of land were allotted for common passage of the original owners and those four different purchasers. Mr Palit, therefore, submits that the common passage for the parties to this proceeding as well as the other four outsiders cannot be included in the present suit.