BIRENDRA KUMAR DEY (ON HIS DEATH BY HIS LEGAL REPRESENTATIVES) AND ORS. Vs. ASWANI KUMAR DEY (ON HIS DEATH BY HIS LEGAL REPRESENTATIVES) AND ORS.

JUDGEMENT

(1.) This appeal arises from the judgment of the Assistant District Judge (I) Silchar passed in Title suit No. 32 of 1972.

(2.) Facts - Five(5) brothers, namely Romen Ch Dey, Birendra Kr Dey, Binoy Ch Dey, Banka Behari Dey and Aswini Kr Dey, were members of a joint Hindu family. Birendra (since deceased) and the heirs of Romen, Binoy and Banka Behari, instituted the suit against Aswini (since deceased) for partition of the suit properties by metes and bounds and claiming allotment of specific areas of lands and particular houses standing thereon described in Schedules-1 and 2 as regards the non-agricultural land and division of the agricultural land. Birendra and Aswini died during the pendency of the suit and, therefore, their legal representatives have been made parties in the suit. The case of the plaintiffs is that five brothers jointly purchased the lands described in Schedules-1 and 3 under registered deeds of sale, Exts- 4 and 8. The land described in Schedule- 2 is a joint family property although it was purchased in the name of Aswini as the purchase was made with the aid of the joint family property. The five brothers were in common possession of the suit land and after their death, their heirs have been in joint possession of the suit lands, but a friction has arisen about the enjoyment and possession of the suit properties. Defendant- 1 Aswini (since deceased) contested the suit denying the allegations made in the plaint. The defendant has further taken a plea that the suit does not embrace all the joint family properties to make a complete and final partition and, therefore, the suit is not maintainable. What are the properties not included in the suit are stated in the written statement.

(3.) The trial Court dismissed the suit holding, inter-alia, that the suit for partial partition is not maintainable. Hence this Appeal.