JUDGMENT :

TAPABRATA CHAKRABORTY, J.

1. Judgment and decree dated 2nd December, 2015 passed by the learned City Civil Court, IV Bench, Calcutta in a suit for partition being Title Suit no. 3461 of 2010, whereby rejecting the counter-claim of the defendant, a preliminary decree was passed declaring the plaintiffs to be entitled to 50% share in the suit property, have been impugned in the present appeal. The appeal against the preliminary decree has been registered as FA 112 of 2016 and the appeal against rejection of the counter-claim has been registered as FA 49 of 2023. As both the appeals arise out of the same judgment, the same have been heard analogously.

2. Facts spelt out in the plaint, in brief, are that one Mathura Prasad Pathak (in short, Mathura) happened to be sole owner of the suit property. Mathura was issue-less and hence, taking consent of his wife, Ramki Debi (in short, Ramki), Mathura took one Satya Narayan Pandey (in short, Satya) on adoption. By executing one deed of trust dated 2nd November, 1955, Mathura appointed himself to be the trustee of that property and on demise of Mathura and his wife, Satya became the sole trustee as well as the sole and absolute owner of the suit property.

3. Satya was blessed with one son, namely, Ramesh Prasad Pathak (in short, Ramesh) and one daughter, namely, Shanti Devi (in short, Shanti), since deceased and Satya himself arranged marriage of his daughter and allotted one room along with bath cum privy etc. in the suit property to his daughter and son-in-law, namely, Krishna Kumar Pandey (in short, Krishna).

4. That Shanti died leaving behind two sons and three daughters, namely, Ajit, Pradip, Arati, Kiron and Anchal. Claiming themselves to be owners of 50% share of the suit property, they instituted the Title Suit no. 3461 of 2010 praying for partition and separate possession of the suit property.

5. Defence and/or plea taken in the written statement and counter-claim by Ramesh, in brief, is that in the deed of trust, it was stipulated that after demise of Ramki and Satya, wife and son of Satya would be the next trustees and there was no provision that daughter of Satya would be the trustee and deed of trust was modified by the settlor himself by another registered deed dated 20th January, 1958 wherein it was provided for that after demise of Satya, his wife, if she then exists or in her absence, the eldest male lineal descendant of Satya would be the sole trustee with all powers provided in the deed of trust and there was no provision for joint trustees along with any female descendant of Satya and it was claimed therein that Shanti had no share in the suit property and was merely a permissive possessor and/or licensee in respect of one room and hence, prayer was made for dismissal of the suit and in counter-claim, decree of recovery of possession was prayed for by ousting the plaintiffs from the room lying in the ground floor of the suit property.

6. In the written statement filed against the counter-claim of Ramesh, the defendant in the suit, specific plea was taken that plaintiffs, the heirs of Shanti, have been enjoying the suit property since 1973 and their possession has been determined in Title Suit no. 8017 of 1985.

7. Considering the pleadings of the respective parties, the learned Court below framed as many as five issues and in corroboration of the facts depicted in the plaint, the plaintiffs adduced oral accounts of one Ajit Kumar Pandey and one Krishna Kumar Pandey and tendered some documents which were marked as Exhibit nos.1 to 8. On the other hand, the defendant adduced oral testimony to lend support to the averments made in the written statement and the counter-claim and produced documents which were admitted in evidence as Exhibit nos. A to D.

8. The suit was decreed declaring the plaintiffs to be entitled to 50% share of the suit property and rejecting the counter-claim. Aggrieved thereby, the present appeals being FA 112 of 2016 and FA 49 of 2023 have been pref