B. BHATTACHARYA, J.

( 1 ) THIS second appeal is at the instance of a plaintiff in a suit for partition and is directed against the judgment and decree dated January 3, 1984 passed by the learned Additional District Judge, 8th Court, Alipore in Title Appeal No. 654 of 1982 thereby affirming those dated May 29, 1982 passed by the learned Subordinate Judge, 4th Court, Alipore in Title Suit No. 32 of 1980 renumbered as Title Suit No. 23 of 1982.

( 2 ) THE appellant herein filed the aforesaid suit for partition against respondent No. 1, his younger brother after making State of West Bengal as a pro-forma defendant. The subject matter of the suit was piece and parcel of land measuring 2 kottahs together with a two storied pucca building and other kuttcha and pucca structures standing thereon being Plot No. E/251 (Local No. 1/29), Vivek Nagar Colony, Calcutta. The case made out by the appellant in the plaint was that the plaintiff and defendant No. 1 were refugees from East Pakistan and the land was forcibly occupied by them and the Refugee Relief and Rehabilitation Department, West Bengal granted necessary licence in favour of plaintiff and defendant No. 1 for the purpose of residence. According to the appellant, initially there was kutcha houses constructed by the parties but gradually a two storied pucca building was constructed over the land at the cost of both plaintiff and defendant No. 1. After making such construction, the parties were living amicably, but of late, the defendant No. 1 having started asserting absolute title over the structure and having threatened dispossession of the plaintiff, the suit was filed for partition after making State of West Bengal, the licensor of the land as a party.

( 3 ) THE aforesaid suit was contested by the respondent No. 1 by filing written statement thereby enying the allegations made in the plaint. In the written statement, the defendant No. 1 did not dispute grant of joint licence by the State of West Bengal in favour of both the brothers but his defence was that he constructed the pucca building at his own cost after taking loan from his office and he restricted his construction within half of the 2 1/2 kottahs of land keeping the other half vacant so that the defendant may also construct on the remaining portion of the land. It was the definite case of the defendant that the plaintiff was a licensee under him in respect of the structure and the plaintiff had neither financial capability nor did he contribute any amount towards the construction of the building which was made with the consent of the plaintiff.

( 4 ) AT the time of hearing of the aforesaid suit, plaintiff along gave evidence in support of his case while three witnesses including the defendant No. 1 deposed in opposing the prayer of the plaintiff.

( 5 ) THE learned trial Judge by the judgment and decree dated May 29, 1982 decreed the suit in preliminary form thereby declaring half share of the plaintiff in the disputed property including structure and the parties were directed to make amicable partition within two months. It was further observed that the suit plot and structure being squatters' colony, the partition will not bind the State of West Bengal.

( 6 ) BEING dissatisfied with the aforesaid judgment and decree passed by the learned trial Judge, the defendant No. 1 preferred an appeal being Title Appeal No. 654 of 1982 and by the judgment and decree impugned in this appeal, the learned first appellate Court below set aside those passed by the learned trial Judge and dismissed the suit for partition.

( 7 ) BEING dissatisfied, the plaintiff has preferred the instant second appeal.

( 8 ) INITIALLY the instant second appeal was allowed by a Division Bench of this Court thereby setting aside the judgment and decree passed by the learned first appellate Court below and affirming those passed by the learned trial Judge.

( 9 ) BEING dissatisfied, the plaintiff preferred a special leave application before the Apex

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