TRIDEEP NARAYAN DEB Vs. SUPRABHA DEVI

JUDGEMENT

(1.) This First appeal under section 96 of the C.P. Code is directed against the judgment and decree, dated 10.01.2011, passed by the learned Civil Judge No. 2, Kamrup at Guwahati in Title Suit No. 169/06, dismissing the suit of the plaintiff/appellant. The suit was instituted for partition of the joint properties, described in the schedule to the plaint.

(2.) The plaintiff/appellant's case, precisely, is that late Rajendra Narayan Deb, the predecessor in interest of the plaintiff and the defendant/respondents herein, owned and possessed various plots of land in and around Guwahati. He died in the year, 1933, leaving behind his wife Lakhipriya Devi, two sons, namely, Jatindra Narayan Dev and Late Dwijendra Narayan Dev. Rajendra Narayan Dev also left a daughter Madhuri Devi Choudhury. Late Dwijendra Narayan Deb is the father of the plaintiff as well as the predecessor in interest of the defendants. In the year, 1965, the legal heirs of late Rajendra Narayan Deb had an amicable family settlement in respect of his property, which was reduced into writing, being the deed No. 2894, dated 19.06.65. Thereafter, those legal heirs continued to occupy their respective shares of the properties. On 01.04.1979 late Dwijendra Narayan Deb died leaving behind the plaintiff/appellant and the defendant/respondents as his legal heirs. At that time, late Dwijendra Narayan Deb had left behind 41 bighas 16 lechas of land in total. In fact, during his life time, late Dwijendra Narayan Deb had sold away 9 bighas 2 kathas and 3 lechas of land of Dag No. 3 of K.R Patta No. 102 and 3 bighas 4 kathas 10 lechas of Dag No. 19 (old)/ 104 (new) of K.P. Patta No. 15 of village Maidamgaon out of the aforesaid 41 bighas 16 lechas of land. It may be mentioned that an area of land measuring 7 bighas 16 lechas, out of Dag No. 403 (old)/ 264 (new) of K.P. Patta No. 15, out of the aforesaid 41 bighas 16 lechas of land was used by the family for construction of residential flats which were sold out to different purchasers. In the year 1990, the wife of late Dwijendra Narayan Deb i.e. the defendant No. 1 Suprabha Devi gifted 1 katha of land under Dag No. 265 of K.P. Patta No. 50 of village Maidamgaon to the present plaintiff/appellant by executing a registered gift deed being No. 5651, dated 23.11.1990. The plaintiff accepted the said gift. The plaintiff/appellant constructed garage for repairing of vehicles over that 1 katha of land. In the meantime, by virtue of inheritance, the plaintiff/appellant had inherited 1 katha 2 lechas of land of Dag No. 264 (old)/ 3668 (new) of K.P. Patta No. 50 (old)/ 349 (new) of village Maidamgaon. The plaintiff/appellant got himself mutated in respect of this plot of land and has been possessing the same. He has constructed some houses over those plots of land, which are let out to different tenants. In this way, the total land that remained in joint possession of the heirs of late Dewijendra Narayan Dev amounted to 19 bighas 8 lechas. The plaintiff/appellant stated that 19 bighas 8 lechas of land is a joint property and therefore, he is entitled to lAth share of that property.

(3.) The defendant/respondents contested the suit by filing a joint written statement. They have denied that the land measuring 19 bighas 8 lechas is in joint possession of the parties. Regarding the said 1 katha 2 lechas of land covered by Dag No. 264 (old)/ 3668 (new) of K.P. Patta No. 50 (old)/ 349 (new), the defendant/respondents admitted that the said plot of land fell into the share of the plaintiff/appellant on the basis of a partition between the plaintiff/appellant and his two brothers i.e. the defendant/respondent Nos. 2 and The defendant respondents contended that the heirs of late Dwijendra Narayan Dev had effected a family settlement on 29.01.1999, which was modified on 31.01.1999. On this ground, the defendant/respondents denied the claim of the plaintiff/appellant that he is entitled to partition of the properties. The ' defendant/respondents further contended that by virtue of the family settlement Suprabha Devi got schedule 'C' and schedule 'D' properties. In this way, the plaintiff/appellant got five bighas one katha 16 Vi lechas land covered by Dag Nos. 261,264 and 264 of K.P. Patta No. 50. The defendant/respondent stated that according to the family settlement, dated 29.01.1999, a plot of land measuring 4 bighas, covered by Dag No. 264 of K. P. Patta No. 50 was kept reserved for M/s Dev Real Estate. The defendant/respondents admitted the factum of gift made by Suprabha Devi in favour of the plaintiff/appellant. The said settlement also declared that another plot of land measuring 3 kathas 18 lechas also went to the share of the plaintiff/appellant. The defendant/respondents stated that on the basis of the family settlement, dated 29.01.1999, the parties had acted upon the same and therefore, the plaintiff/appellant is no longer entitled to claim partition of the family property or to resile from that.