The denial of oral partition by the defendants in a partition suit raises a genuine issue that needs to be resolved during the trial. The plaint cannot be rejected solely on the basis of a prior oral partition.

Jyotirmay Bhattacharya, J.

This first appeal is directed against an order of rejection of plaint filed in the partition suit vide Order No. 32 dated 11th May, 2016 passed by the learned Civil Judge (Senior Division), 1st Court, Barasat, North 24-Parganas in Title Suit No. 313 of 2012 at the instance of the plaintiffs/appellants.

2. An interim order of injunction was passed by this Court on 3rd October, 2016 by restraining the respondents from raising any construction and/or further construction over the suit property and/or from changing the nature and character thereof till the end of November 2016 or until further order whichever was earlier. The said interim order of injunction was extended from time to time and the said interim order of injunction is still in operation.

3. Today, at the time when the appellants' prayer for further extension of the interim order of injunction was under consideration, we are requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit on the basis of the material available before us.

4. The plaint filed in the partition suit was rejected by the learned Trial Judge on an application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant No.1/respondent No.1 alone. The said defendant No.1 is now before us. Since the other defendants did not pray for rejection of the plaint, their presence, in our view, is not necessary for disposal of this appeal. As such, service of notice of appeal upon those respondents is dispensed with.

5. For considering the justifiability of the impugned order, we only require to consider the plaint and the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant No.1/respondent No.1. Those two documents are now before us. As such, we have decided to dispose of the appeal itself on merit by dispensing with the requirement of filing paper book in this appeal.

6. Let us now consider the merit of the instant appeal in the facts of the present case.

7. The plaintiffs filed a suit for partition against their co-sharers in respect of various plots of land including one plot being C.S. Plot No.539 comprising of .23 decimals of land. Abdul Hadi Mondol was recorded as raiyat in respect of the said plot of land. Amongst various other plots, another plot being bata dag No. 574/1794 comprising of an area of .23 decimals of land was recorded in the name of Ummar Ali Mondol. The plaintiffs alleged that the suit property comprising of various plots of land was originally owned by three co-sharers viz., Abdul Hadi Mondol, Taleb Ali Mondol and Ummar Ali Mondol having 1/3rd share each in the suit property. It is further alleged in the plaint that there was amicable partition between the co-sharers and on the basis of such amicable partition, C.S. dag No. 539 comprising of .23 decimals of land was allotted in favour of Abdul Hadi Mondol. It was further alleged that by virtue of such amicable partition, bata dag No. 574/1794 comprising of .23 decimals of land was allotted in favour of Ummar Ali Mondol. It was further alleged therein that the other dags have also been recorded in the names of other co-sharers by virtue of such amicable partition. It is also alleged therein that subsequently one of the co-sharers viz., Taleb Ali Mondal executed a deed of Hebanama in favour of the plaintiffs being registered deed No.1015 in the year 1968 for bequeathing his allotment in favour of his sons viz. the plaintiffs herein.

8. The suit property comprises several plots of lands of various descriptions. There are residential house, vacant land, danga lands etc. However, since the defendants are denying amicable settlement and/or challenging the correctness of the recording of names of the raiyats in the R.S. record of rights, the plaintiffs have filed the instant suit for partition and injunction. The right of the defendant no.1 to purchase the dag No. 1793 or to make construction over there is also challenged