UPEN DAS Vs. LENOON DARJI

JUDGEMENT

(1.) This second Appeal, at the instance of the defendants, is directed against the judgment of affirmance, dated 15th of December, 1979 passed by the learned Additional District Judge, First Court, Jalpaiguri, in Original Civil appeal No. 11 of 1979 affirming the same, dated 24th of February, 1976 passed by the Learned Munsif, Jalpaiguri in O.C. Suit No. 129 of 1976.

(2.) The facts necessary and relevant for adjudication of the dispute involved in the appeal are more or less admitted. The defendants 1 to 4 filed a suit for partition, being partition Suit No. 26 of 1951, of the Court of the Learned Subordinate Judge, Jalpaiguri, against defendants 5 to 16 and/or their predecessors-in-interest claiming partition of their 1 anna 15 gandas 2 karat 13 tills' share without impleading the present plaintiffs/ respondents and/or their predecessors-in-interest as parties and obtained an ex parte preliminary decree on 13.1.1955 and a final decree. The plaintiffs had instituted the instant suit, inter alia, alleging that the properties in dispute in the present suit were owned by such plaintiffs and/or their predecessors-in-interest on the basis of deeds of purchase and/or auction sale and were in their possession as con6rmed by the R. S. Records of rights; that the defendants, claiming that they had been allotted portion of the suit properties by virtue of the final decree of the above partition suit had been threatening to disturb the possession of the plaintiffs. Accordingly, in the instant suit the plaintiffs prayed for a declaration that the preliminary decree and final decree passed in the said partition suit were fraudulent, collusive, null and void and not binding on the plaintiffs and their right, title and interest had not been affected by such decrees and also for a perpetual injunction against defendants 1 to 4 seeking to restrain them from disturbing the possession of the plaintiffs in the suit lands. The defence, as discernible from the Written Statement filed on behalf of the defendants 1 to 4, was, inter alia, denial of the plaintiff's right, title, interest and possession in the disputed lands. It is partinent to note, at this stage, that no dispute about the identity of the lands involved in the present suit and of those covered by the above partition decrees had been raised on behalf of the defendants.

(3.) The learned Trial Judge, upon a consideration of the respective cases and the documents of title as filed, decreed the suit by declaring that the partition decree was null and void and not binding on the plaintiffs whose rights and interests were not affected in any way by the said decree. The Learned Trial Judge also granted a permanent injunction restraining defendants 1 to 4 from interfering, in any way, with the plaintiffs' possession in pursuance of the said partition decree. The Lower Appellate Court dismissed the appeal and affirmed the judgment and decree of the Trial Court.