DEBI RANI PAUL Vs. NIRMALA GHOSH

JUDGEMENT

(1.) - This is an appeal by the plaintiffs against a judgment and preliminary decree passed in a partition suit. The subject matter of the instant partition suit is the premises No. 14C, Sambhubabu Lane, Calcutta 14 which is a three storied building comprising a total area more or less 1 cottah 9 chitaks 11 sq. ft. In this appeal respective shares of the parties as declared by the trial court have not been disputed. It has been declared that the plaintiffs are the owners of 7/9th share, the defendant Nos. 3 to 6 have 1/9th share jointly and the defendant No. 2 is the owner of 1/9th share in the suit premises.

(2.) The facts relevant for the present purpose are as follows :- The common ancestor of the parties was one Dr. Jono Ranjan Paul. He died leaving behind his six sons namely Satish Chandra Paul, Kiron Chandra Paul, Biren Paul, Nilratan Paul, Nirmal Paul and Bimal Chandra Paul. Said Kiron Chandra Paul died leaving behind his three sons namely Banwarilal Paul, Barid Baran Paul and Nirode Baran Paul, one daughter Sm. Bidhabati Paul and his widow Naresh Nandini Paul. Said Nilratan Paul died leaving behind his son Bijoy Ratan Paul and the defendant No. 2, Goutam Paul is the son of Bejoy Ratan Paul. The plaintiffs are the heirs and legal representatives of Nirode Baran Paul. Thus, Nilratan Paul and Kiron Chandra Paul are two brothers and the plaintiffs are the lineal descendants of Kiron Chandra Paul whereas the defendant No. 2 is the lineal descendant of Nilratan Paul. It is not disputed that Nilratan Paul had 1/3rd share in the suit premises and on his death his son Bejoy Ratan Paul sold his undivided share in the aforesaid suit premises to Nirode Baran Paul, the predecessor-in-interest of the plaintiff. However, it is the case of the defendant No. 2 that his father though sold his 1/3rd share in the aforesaid premises but retained possession of one room. It was also proved in evidence that by registered deed of partition dated 25.6.58 the aforesaid suit premises came to the share of Nirode Baran Paul, the predecessor-in-interest of the plaintiffs subject to the possession of Bejoy Ratan Paul in one room as above and the right of residence of the deceased defendant No. 1 namely Sm. Bibhabati Paul, sister of Nirode Baran Paul. Admittedly, Smt. Bibhabati Paul, since deceased who was a co-sharer along with Nirode Baran Paul sold her share in the aforesaid premises to Gautom Paul the defendant No. 2 who again admitted in his deposition that his claim for 1/9th share in the suit premises is not based upon as an heir to his father Bejoy Ratan Paul but by virtue of his purchase of the share of said Sm. Bibhabati Paul the deceased defendant No.1.

(3.) In these facts and circumstances an application under section 4 of the Partition Act was filed by the plaintiffs for purchasing the share of said Goutam Paul who acquired the same by virtue of purchase from the defendant No. 1 namely Smt. Bidhaboti Paul in the suit premises No. 14C, Sambhubabu Lane, Calcutta.