KALPITA DEB Vs. KAJORI DEB

JUDGEMENT

(1.) This appeal is directed against the order dated 28.04.2016 passed by the learned Civil Judge (No. 1), Kamrup in Title Suit No. 100/2015 dismissing the suit of the plaintiff on the preliminary issue of maintainability.

(2.) The appellant as plaintiff filed the suit for declaration of right, title, interest, partition and recovery of possession. The case of the plaintiff was that the suit property originally belonged to one Sashi Mohan Dev. After death of Sashi Mohan Dev, the property including the suit property of said Sashi Mohan Dev devolved upon his 7 legal heirs and the property left by Sashi Mohan Dev was partitioned amongst his 7 legal heirs. Late Subodh Kumar Dev, the predecessor in interest of the parties to the present suit was one of the son and legal heir of Sashi Mohan Dev and after the family partition, Sobodh Kumar Dev had been possessing the suit property having fallen in his share and after death of Subodh Kumar Dev, the property left by Sobodh Kumar Dev was inherited by the plaintiff, and her brother, Somnath Dev, predecessor of the defendants.

(3.) The plaintiff was married to a bank officer and as such, she had to remain outside Guwahati with her husband. Therefore, Somnath Dev was looking after the property falling in the share of the plaintiff. The ancestral property of the plaintiff and defendants were in two plots described in Schedule-A and B of the plaint. The land covered by Schedule-B of the plaint was already divided and both the plaintiff and predecessor of the defendants were possessing their respective share. However, Schedule-A land was not partitioned and when the plaintiff/appellant sought for her equal share in Schedule-A land, the defendants informed through legal notice, that the plaintiff relinquished her right over the schedule land as per an alleged agreement dated 25.11.2004. The case of the plaintiff was that she never relinquished her share in the ancestral property by any agreement and such alleged deed was fraudulently prepared by the defendants and therefore, filed the suit for declaration, partition and separate possession.