SARUBALA PAL Vs. AMIYA BHUSAN PAL

JUDGEMENT

(1.) . This appeal is directed against the judgment and preliminary decree passed by the learned Addl. Subordinate Judge, West Tripura dated 20-2-1991 and 6-3-1991 respectively in Title Suit No. (Partition) 54 of 81 dismissing the suit instituted by the appellant as plaintiff which has arisen in the following circumstances.

(2.) 1 have heard Mr. B.B. Deb, learned Senior Counsel and Mr. M. Kar Bhowmik, learned Counsel for the appellants. Also heard Mr. B. Das, learned Senior Counsel for the respondents.

(3.) The title suit was instituted by the appellants praying for preliminary decree for partition of the property by metes and bounds and for declaration that the deed dated 2-11-1980 registered on 13-7-1981 in respect of properties within the plaintiff and defendants as null and void, inoperative and not binding upon the parties. The plaintiff and the predecessor of the defendants were the full blooded brothers and they used to live in the same mess and held respective properties jointly acquired from joint fund as well as the properties acquired from their parents. The predecessor of the defendants, namely, Monoranjan Pal (since deceased) left the defendants as his only heirs. Before the death of Monoranjan Pal-plaintiff started living in a separate mess though properties remained joint. A deed of partition was executed by the plaintiff and defendants on 2-11-1980 which was registered on 13-7-1981 in respect of some of the joint properties. The said partition did not inelude all the joint properties. The plaintiffs pleaded that the said partition was not effected by metes and bounds and did not allocate 50% of the share of the plaintiffs in the joint property. The plaintiff also pleaded that the defendant Nos. 6 and 10 did not execute the partition deed dated 2-11-1980. According to the plaintiff, the partition deed was vitiated by fraud committed by the defendants. The plaintiff demanded the partition of properties by metes and bounds putting a claim of 50% of the share and on refusal by the defendants to comply with his demand, the suit was instituted accordingly.