PRADIP GOENKA AND ANOTHER Vs. RAJIB GOENKA

JUDGEMENT

(1.) In Re: CAN 7136 of 2017 This is an application arising out of an order No. 45 dated 29th June, 2017 passed by learned Civil Judge (Senior Division), Bankura in Misc. Case No. 48 of 2016 filed in connection with Title Execution Case No. 2 of 2015 arising out of Title Suit No. 91 of 1995.

(2.) According to the appellants, one Smt. Manjula Goenka, as plaintiff, filed a suit for partition against one Smt. Manidevi Goenka, the mother of the appellant. The said suit was registered as Title Suit No. 91 of 1995. By a judgment and decree dated January 16, 1996, the suit was decreed on compromise in preliminary form and final decree was passed. Thereafter the decree holder/respondent put the final decree into execution. Thereafter, the appellant filed an application under Order 21, Rules 58 and 101 read with section 151 of the Code of Civil Procedure in connection with the said execution case. According to him, the said suit property forming the subject matter of the suit for partition was coparcenery property of his grandfather, namely, Ramlal Goenka and the deed of gift on the basis of which Smt. Manjula Goenka and Smt. Manidevi Goenka acquired title over the suit property was the coparcenery property and they as coparcener/cosharer and the share in the property and as such, the final decree amongst the parties inter se could not have been passed.

(3.) The said application was heard by the learned Civil Judge (Senior Division), Bankura by judgment and order dated June 29, 2017. The said application was dismissed on contest with the observation that the appellants do have any independent right, title and interest or possession over the property in question and they could get the 2/9th share in the property as Smt. Manjula Goenka and Smt. Manidevi Goenka acquired half share in the property on the basis of the valid deed of gift.