A suit for partition can only be filed by co-sharers of a property.

( 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 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 14th 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.