JUDGMENT :

Partha Sarathi Chatterjee, J.

1. The present appeal has been preferred to assail the judgment and decree passed in preliminary form on 23.12.2020 in a suit for partition vide. T.S. no. 116 of 2014 declaring the plaintiff no. 1 and plaintiff no.2 to be 2 entitled to the share to the extent of 10-5/8 dec. and 22-3/8 dec. respectively, defendant nos. 4(Ka), 4 (Kha) & 5 to be entitled to the share to the extent of 1/3rd jointly and whereas the defendant no. 13 to 19 to be entitled to 1/3rd share of ‘Ka’ schedule property and also holding that defendant no. 21 is not the daughter of the Prasanna Patra and is not entitled to any share in ‘Ka’ schedule property.

2. One Sukumar Patra S/o Achintya Patra and one Ajoy Patra S/o Nabin Patra filed one suit for partition. Facts depicted in the plaint, in brief, are as follows:

i) Raghunath, Dinanath and Srinath Patra each had 1/3rd share in ‘Ka’ schedule property (hereinafter referred to as the suit property) and their names were duly mutated in R-O-R in 1954-1957 and Raghunath died leaving behind six sons, namely, Nabin, since deceased, who was arrayed as defendant no. 20, Surendra, Prafulla, Bhim, Prasanna and Dhirendra who inherited 1/18th share each.

ii) On 16.5.1963, one deed of family settlement was executed and by dint of that deed, Nabin got share of Dhirendra. Prafulla and Bhim relinquished their 1-2/18 dec. each in favour of Nabin. So, Bhim and Prafulla became owner of 8 dec. each and Nabin acquired ownership of 20-4/9 dec.

iii) Prasanna died leaving behind one son, Dulal and one daughter, Janaki. Although Dulal and Janaki sold out more than their share to 3 Surendra and Nabin but actually, Surendra and Nabin got 9-1/18 share from Dulal and Janaki.

iv) Prafulla died leaving behind one son who sold out his share to Nabin on 29.6.1998 and hence, Nabin and Surendra became owners of 32-17/18 dec. and 13-2/3 dec. respectively. Surendra died leaving behind one son, Amar Patra. Bhim sold out rest of his share being 8 dec. to Amar on 29.6.1998 and hence, Amar got 21-2/3 dec.

v) On 7.3.2013, Nabin sold out 21-1/4 dec. to the plaintiffs and on the same day i.e. on 7.3.2013, Amar sold out his entire share to defendant nos. 1 and 3. Plaintiffs claimed to be the owners of ‘Ka-1’ schedule properties and it was claimed that the defendant nos. 1, 2 & 3 are the owners of 21-1/2 dec. whereas Nabin, defendant no.20, now deceased, was the owner of rest part of his share lying in ‘Ka’ schedule property excluding the properties mentioned in schedule ‘Kha-1’. The defendant nos. 4 to 12 are in possession of 1/3rd share and whereas the defendant no. 13 to 19 are in possession of 1/3rd share respectively in ‘Ka’ schedule property.

vi) It was specifically claimed that the defendant no. 21 was not daughter of Prasanna Patra and she was daughter of Baino and Durgamonee Jana and Prasanna Patra knotted marital tie with Brahma and both of them left behind one son namely, Dulal and one daughter, Janaki who sold out their share to Surendra and Nabin.

3. Records reveal that only the defendant no. 21 namely, Putul Patra (hereinafter referred to as Putul) contested the suit by filing written statement. Specific defence taken by the defendant no. 21 was that she happens to be daughter of Prasanna Patra and Praksha Patra and not of Baino and Durgamonee Jana and she specifically claimed that she did not sell her share which she inherited on demise of her father, Prasanna to anyone and hence, she is entitled to get her share.

4. Records further reveal that Nabin had filed a suit for partition vide. T.S.no.147 of 2010 in which Putul was added as defendant no.7 basing upon her application taken out under Order 1 Rule 10 CPC in which it was held that Putul happens to be the daughter of Prasanna Patra. Putul filed written statement along with counter-claim in connection with that suit. Thereafter, Nabin did not proceed with the suit and consequently, the suit was dismissed for non-prosecution and ultimately, counter-claim w