JUDGMENT
Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of a defendant in a suit for partition and is directed against the judgment and decree dated 15th December, 1989 passed by the learned Assistant District Judge, 3rd Court, Howrah in Title Suit No. 2 of 1987 thereby passing a preliminary decree by declaring plaintiffs’ title in respect of 6 and 1/2 decimals of land in plot No. 3480 and 9 and 1/3 decimals of land in plot No. 3481 of Khatian Nos. 2291 and 2295 of Mouja Balitikuri. By the said decree the parties were allowed two months’ time to effect mutual partition by metes and bounds after maintaining the respective possession of the parties; failing which, the parties were at liberty to move the Court for appointment of Commissioner to have the property partitioned by metes and bounds.
2. The case made out by the plaintiffs/respondents may be epitomised thus:
(a) The plaintiffs, five in numbers, are all brothers by relation. By a registered deed of sale dated 12th May, 1961, they purchased from one Alamohan Das, the father of the present appellant, 4 cottahs 1 chittak and 25 sq. ft. out of Dag No. 3480 and further purchased 6 cottahs 2 chittaks and 15 sq. ft. out of Dag No. 3481 and thereafter remained in joint possession of the same.
(b) The total area of Dag Nos.3480 and 3481 was 58 and 55 decimals respectively and those had been retained by Alamohan Das, the father of the appellant under the provision of West Bengal Estates Acquisition Act. At the time of preparation of R.S. Khatian, Dag No. 3480 was recorded in Khatian No. 229 and Dag No. 3481, in Khatian No. 2295.
(c) The defendant was a co-sharer in respect of both the suit plots as described in schedule to the plaint by virtue of a registered deed of gift dated 14th September, 1951 executed by his father when the appellant was a minor. The area of the above two plots as covered by the said deed of gift was not correctly mentioned in the body of the gift-deed and was not correctly delineated in the attached deed plan. The gift was registered on 18th September, 1951 whereas the attached plan was registered on 19th September, 1951 and there was no recital in the body of the gift-deed that the plan was made a part thereof.
(d) In R.S. Khatian Nos.2291 and 2295, the defendant was wrongly and erroneously recorded as a full owner of both the suit plot Nos. 3480 and 3481. The entries in the aforesaid khatian were collusively and fraudulently made by the defendant and his father for the mutual benefit. The error occurring in R.S. Khatian would be apparently clear from the fact that the Dag No. 3470 was covered by the deed of gift dated 14″‘ September, 1951 drawn in favour of the appellant but in R.S. Khatian No. 2291 the entire Dag No. 3470 measuring 0.055 decimal was recorded in the name of Alamohan Das as sixteen annas owner.
(e) It was inconvenient for the plaintiffs to jointly possess the plot described in Schedule ‘A’. The plaintiffs applied for mutation and their names were mutated in respect of areas purchased by them in 1961 and the plaintiffs had been paying rent to the State Government and tax to the Panchayat office.
(f) The defendant was repeatedly requested to partition the suit land which the defendant deferred on various pretexts. Hence the suit.
3. The suit was contested by the defendant by filing written statement and the defence taken by the defendant may be precised thus :
(1) The suit as framed was not maintainable and was hopelessly barred by limitation. The suit was also hit by the provision of Section 34 of the Specific Relief Act and Section 57B of the West Bengal Estates Acquisition Act.
(2) The defendant was the absolute owner of the suit property for all material purposes and was in possession of the same by exercising various overt acts of ownership and possessions since the deed of gift dated 14th September, 1951 was executed and registered in his favour by his father. The said deed of gift had been recorded in book No. 1 volume No. 46 pages 170 to 119, being No. 2850 of the year 1951 at Howrah. The said deed of gift was accepted and acted upon and the name of the defendant was duly mutated in the relevant parcha in respect of Dag Nos.3480 and 3481. The name of the defendant had also been recorded in the local Panchayat and Settlement Office in respect of the property. The defendant, thus, prayed for dismissal of the suit.
4. At the time of hearing of the suit two witnesses were examined on behalf of the plaintiffs while the defendant alone deposed in opposing the claim of the plaintiffs.
5. The learned Trial Judge, as indicated earlier, decreed the suit in preliminary form thereby declaring the plaintiffs’ share in the suit property with a direction to mutually partition the property within a specified period and in default, the parties were given liberty to apply for partition through Court.
6. Being dissatisfied, the defendant has come up with the present first appeal.
7. After hearing Mr. Sanyal, the learned Advocate appearing on behalf of the appellant and Mr. Banerjee, the learned Advocate appearing on behalf of the plaintiffs-respondents and after going through the materials on record we find that the suit as framed was not maintainable and on the basis of averments made in the plaint and the documents relied upon by the parties, a suit for partition could not be filed.
8. There is no dispute that one Alamohan Das, since deceased, the father of the defendant, was the original owner of the suit property and other properties. The said Alamohan Das in the year 1951 gifted 3 bighas 15 cottahs and 3 chittaks of land of Dag Nos.3470, 3480, 3481, 3482 and 3483 in favour of the defendant, his son, as specifically shown in the plan annexed to the deed of gift being surrounded by red dots. The said Alamohan Das, 10 years thereafter, sold some other properties of the same plot to the plaintiffs and thus, they became the owners in respect of their purchased property by virtue of the said deed of 1961. Once it is admitted by the plaintiffs that their predecessor Alamohan Das was the absolute owner of the property without any co-sharer and out of that property, he first gifted some portion to his son, his son cannot become a co-sharer of Alamohan Das but the defendant in fact became absolute owner in respect of the portion gifted to him. Subsequently, Alamohan Das sold some other properties to the plaintiffs and by virtue of that deed, they also became the absolute owners of those portions. Therefore, Alamohan Das had no right over the transferred portion to either the defendant or the plaintiffs by the aforesaid two deeds. When the plaintiffs acquired the property from Alamohan Das in the year 1961, the defendant was not the co-sharer of his father because the father had already gifted a part of his property to the defendant and, thus, by virtue of the purchase from Alamohan Das, the plaintiffs cannot by any stretch of imagination become the co-sharer of the defendant.
9. The learned Trial Judge, as it appears from the records, proceeded wrongly in arriving at the conclusion that by virtue of their purchase from Alamohan Das, the plaintiffs became the co-sharer of the defendant.
10. It is, therefore, clear that the plaintiffs were never the co-sharer of the defendant they having purchased a definite portion from Alamohan Das at a point of time when the defendant had already acquired absolute title by virtue of the deed of gift executed in his favour. If according to the plaintiffs he had not got possession of the actual area covered by their sale deeds, it was their duty to file a suit for recovery of possession from their vendor or his successors on the basis of title accrued in their favour by virtue of the sale deed of the year 1961 but a suit for partition against the defendant who became the absolute owner long 10 years ago by dint of the deed of gift executed by his father was not maintainable as he cannot be described as the co-sharer of the plaintiffs.
11. We, thus, find that on the face of the two deeds exhibited in this case, it is apparent that the plaintiffs and the defendant are not the co-sharers of the property. The appropriate remedy of the plaintiffs lies by filing appropriate suit for recovery of possession if according to them they have not got possession of the land sold to them by Alamohan Das.
12. We, therefore, set aside the judgment and decree passed by the learned Trial Judge on the sole ground that the plaintiffs and the defendant were never co-sharers of the property and as such, the suit for partition was not maintainable.
13. We make it clear that we have otherwise not gone into the question whether the plaintiffs really got possession of the property by virtue of their purchase or whether the defendant has encroached upon any portion of the land purchased by the plaintiffs from the father of the defendant.
14. The appeal is, thus, allowed. The judgment and decree passed by the learned Trial Judge are, accordingly, set aside.
15. In the facts and circumstances, there will be, however, no order as to costs.
Pravendu Narayan Sinha, J.
16. I agree.