DWIJABRATA DAS Vs. DEBABRATA DAS

JUDGEMENT

(1.) This first appeal has been preferred by the defendants against the judgment and decree passed by Assistant District Judge, Shillong in TS (Partition) No. 12(H)/1987.

(2.) Plaintiffs and defendants are the joint owners of the property in dispute situated at Jail Road, Shillong measuring approximately 9689 sq. ft. covered by plot No. 10(1), pata No. 59 issued by Deputy Commissioner, United Khasi and Jaintia Hill Distict, Shillong dated 19-12-1969. Predecessor in interest of both the parties of the property was Late Raibahadur Dinesh Chandra Das who died on 18-10-(sic). According to Hindu Law of Succession then preventing, property devolved on both the parties as legal heirs and the same was jointly inherited by the successors, including the wife (acquired life interest) of the predecessors in interest who was the mother of the parties. The mother of both the suit parties died in 1973 and the property devolved to the sons and daughter in law who became the owner of the 1/6 th share of the entire property. Share of the mother, who also benefited after the Hindu Succession Act came into force in 1956, devolved to the daughters, along with five some of her. After her death the five married daughters became legal heirs each having been 1/10th share holder of their mother's 1/6th share.

(3.) The two opposite parties as plaintiffs filed the Title suit for partition of their property together with 2/10th of the mother's 1/6th share in the said property jointly to them and by separating the same for their separate and peaceful enjoyment. Their case is that they are living outside Shillong plaintiff Debabrata Das at Tinsukia and plaintiff Satyabrata Das at Calcutta, and due to their absence from Shillong they find difficulty to full enjoyment of their shares in the property, jointly with the defendants shares and accordingly the asked them to partition the property jointly between the two plaintiffs and separately from defendants. The plaintiffs/opposite parties included all sisters as defendants by amending the plaint accordingly. The defendants/appellants No. 1, 2 and 3 filed written statement jointly, contested the suit on the ground that, (a) ancestral dwelling being a very small one not capable of partition and entire property should be allowed to be retained by the defendants/appellants who have been living in the property; (b) partition will cause fragmentation of the property which is barred by Govt. orders, for transfer; (c) appellants are maintaining the property since the death of their father by doing all the repairing works, paying taxes, revenues and other charges; (d) appellants have been in exclusive separate possession of the said dwelling house among themselves including mother under mutual arrangements by undertaking all repairs and the same cannot be partitioned to their prejudice, effecting their exclusive possession and enjoyment; (e) that the appellants have been regularly remitting the monthly rent to the opposite parties who have been all along enjoying the usufruct in respect thereof and this is their separate share held and enjoyed under mutual arrangement.