DHIRENDRANATH CHANDRA Vs. APURBA KRISHNA CHANDRA

JUDGEMENT

(1.) This revision application is directed against the order dated 21-4-1977 passed by the Subordinate Judge, 2nd Court, Dhanbad, in Title Suit No. 32 of 1975 refusing the prayer of the petitioner to decide the preliminary issue that the suit was barred under the provisions of Section 66 (1) of the Civil P. C. (hereinafter referred to as "the Code").

(2.) It is not disputed that opposite party Nos. 1 to 4 and the petitioner are full brothers, being the sons of late Sushil Kumar Chandra whose father was Indra Narain Chandra. It is also not disputed that Sushil Kumar Chandra died during the lifetime of his father, Indranarain Chandra. Opposite party Nos. 1 to 4 instituted Title Suit No. 32 of 1975 for partition of their 4/5th share in the property mentioned in Schedule A to the plaint. The remaining l/5th share, according to the opposite party-plaintiffs, belonging to defendant-petitioner. It is also not disputed that the suit property had been purchased at a Court sale in the name of the petitioner (defendant No. 1). It was the further case of the plaintiffs-opposite party that the suit property had been purchased by Indra Narain Chandra, the grandfather of the petitioner in the name of the petitioner (defendant No. 1) since he was at that time the only other adult male member in the family. It was also asserted by the plaintiffs opposite party that the suit property was joint family property and after the death of Indra Narain Chandra in 1931 has been all along in possession of the five brothers, namely, the plaintiffs (opposite party Nos. 1 to 4) and petitioner-defendant No. 1.

(3.) In his written statement, the defendant-petitioner denied the aforesaid allegations and resisted the claim of the plaintiffs, amongst other grounds, on the ground that they were not entitled to maintain the suit in view of the provisions of Section 66 (1) of the Code. One of the issues framed in the suit was whether the suit was barred under the provisions of Section 66 (1) of the Code. The petitioner-defendant No. 1 by an application dated 21-4-1977 prayed for determination of the above issue as a preliminary issue in the suit. The prayer of the petitioner-defendant No. 1 was disallowed by the learned Subordinate Judge by the impugned order. Defers dant No. 1-petitioner has, therefore, come up in revision before this Court,