Judgment :

Dr. Arijit Pasayat, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the Calcutta High Court allowing the Second Appeal filed by the respondents under Section 100 of the Code of Civil Procedure, 1908 (in short the ‘CPC).

3. The appellant as plaintiff filed a suit for declaration of title and recovery of khas possession and also of permanent injunction contending inter-alia that the suit land in R.S. Khatian No.31 of Mouza Chandibera under P.S. Rajarhat originally belonged to Ananda Chandra Mondal, Mubir Mondal, Bhutnath Mondal, Gadadhar Mondal, Mathar Mondal, Kartick Mondal, Haradhan Chandra Ghosh and Bishwanath Ghosh. While they were in joint possession in same for convenience of possession they made an amicable partition amongst themselves and in that partition plaintiff and proforma defendant No.3 got 12 decimals of land in plot No.223/455 which was described in schedule A of the plaint. Subsequently, by an amicable partition between the plaintiff and proforma defendant No.3, plaintiff got B schedule property, that is to say, 6 decimals of land at the southern portion of the aforesaid suit property and proforma defendant No.3 got 6 decimals of land at the northern portion of the suit plot. In this way, plaintiff got B schedule of land and C schedule of land fell in the share of pro-defendant no.3. Thereafter, as per the case of the plaintiff by way of an oral exchange, defendants 1 and 2 got C schedule property from proforma defendant No.3 and they started residing thereon by constructing house. B schedule of land was lying vacant. Plaintiff was in possession of that land by cultivation. Defendant Nos.1 and 2 threatened the possession of the plaintiff. In that background, the plaintiff filed the suit originally for permanent injunction against defendants 1 and 2. Subsequently, it was contended by the plaintiff that defendant Nos.1 and 2 dispossessed the plaintiff from the suit property and, therefore, the plaintiff prayed for recovery of possession of such property. Defendant Nos.1 and 2 contested the suit by a written statement alleging inter-alia that the plaintiff was all along since the date of partition remained separately in his own allotted land and the defendants also were possessing the land and structure according to their own share on the portion allotted to them. In this background, they denied the allegation of dispossession from the suit property made by the plaintiff. It was the further allegation of the contesting defendants that the total land were amicably partitioned amongst themselves by the intervention of the members of the gram Panchayat as per the family arrangements. The parties were separated in respect of the possession of the land in dispute and the contesting defendants after getting the plan sanctioned, constructed the building over the allotted land. The plaintiff was not entitled to get a decree as prayed for.

4. Learned Munsiff formulated several issues and relied on certified copy of the decreed suit. The first Appellate Court has also upheld the view of the trial Court. The Second Appeal was admitted with the following questions of law:

(i) Whether the learned Judge in the courts below substantially erred in law in completely misleading, misconstruing and mis-appreciating the scope of the suit for declaration, injunction and recovery of possession between the co-sharers in the absence of any legal and valid partition and erroneously decreed the suit on a misconception of law?

.(ii) Whether the learned Judge in the courts below substantially erred in law in decreeing the suit by declaring that the plaintiff/respondent No.1 has right, title and interest in respect of `B schedule suit property and for recovery of possession of the said property by evicting the appellants therefrom inasmuch as the learned Judge in the courts below have failed to appreciate that all the parties to the proceeding are co-sharers having joint share in the s