JUDGMENT :

(Soumen Sen, J.) :

1. The appeal was heard along with the application for amendment of the written statement. The appeal and the said application are disposed of by this common judgment.

2. Briefly stated, the appellants are the legal heirs of one Sambhu Nath Roy. The respondents are the legal heirs and representatives of one Kamalakshya Roy, since deceased. The relationship between the parties would appear from the following genealogical table:

Genealogical Table

3. Prasanna, Jogesh Jogesh and Nibaran took settlement (Banda(Bandabosto) of the suit property on 8th January,January, 1907 from the Government Government of India. The Pattas were disclosed andand marked as Exhibit 5. Prasannaanna was having 8 Annas share whereas Jogesh and Nibaran both sons of Tarini have 4 annas share each.

4. On the death of Prasanna his two sons Ramchand Roy and Kalachand Roy inherited 8 annas share of their father each having 4 annas share and recorded their names in C.S.R.O.R. The C.S.R.O.R published during 1928-1930 would show their names.

5. Jogesh also died in the mean time and his 4 Annas share was inherited by his only son Kamalakshya and he recorded his name in C.S.R.O.R. The name of Nibaran was also recorded in C.S.R.O.R.

6. During 1931 and 1940 Ramchand Roy died as bachelor and his 4 annas share devolved upon his brother Kalachand who became 8 annas owners of the suit property.

7. Nibaran Roy died by this time and his 4 annas share was inherited by his widow Jyotindra Mohini Roy. Nibaran was issueless. In or about 1941 due to non-payment of Khajna (rent) a certificate case was initiated by the government being no.73 of 1941-42 against Kalachand Roy representing 8 Annas share and Kamalakshya Roy representing 4 annas share. The said property was put to auction. The State purchased the property in the said auction sale. The sale was confirmed in favour of the State in 1941. The State subsequently on 20th April, 1942 took symbolic possession of the whole property through court including the share of Jyotindra Mohini. Kalachand died thereafter leaving his two sons Kashinath Roy and Shambhu Nath Roy. In 1954 Jyotndra Mohini Roy and Shambhu instituted a Title Suit Being T.S. no.60 of 1954 against the State of West Bengal and Kamalakshya Roy, praying inter alia, for cancellation of certificate of sale and taking over possession by the State of the property as the sale was allegedly vitiated by fraud. The State only contested the said suit. The said suit was decreed on 10th July, 1957. Only the share of Jytindra Mohini to the extent of 1/4th share of the suit property was declared not affected by the sale as she was not served with the notice of the certificate case. However, the claim of the plaintiffs no.2 and 3 being Kashinath and Shambhu Nath was dismissed. Kashinath and Sambu Nath thereafter preferred a Title Appeal being Title Appeal No.131 of 1957.

8. The appellate court by a judgment dated 7th May, 1960 dismissed the Title Appeal and thereafter no second appeal was preferred and the judgment and decree in the title suit being T.S. No.60 of 1954 attained finality.

9. In 1962 Jyotindra Mohini died issueless. On the basis of the aforesaid declaration that she became the owner of 4 Annas share of the property, the said share devolved upon Kamalakshya Roy the only son of Jogesh Chandra Roy as Nibaran and Jyotindra Mohini died issueless. Jogesh was the brother of Nibaran. In view thereof Kamalakshya became in the owner of 4 Annas share of the suit property while the State remained the owner of 12 Annas share in terms of the certificate sale.

10. On 3rd January, 1980 Kamalakhya died leaving behind Nilotpal Roy, Jagannasth and Shibani. The original plaintiffs of the present partition suit being Partition Suit No.296 of 1998 (renumbered as partition suit no.141 of 2002) claimed to have inherited 4 annas share jointly in the suit property with Kamalakhya. The suit was originally filed against the State of West Bengal only inter alia, cl