JUDGMENT :

Partha Sarathi Chatterjee, J.

1. Judgment and decree dated 21st September, 2016 passed by the learned Civil Judge, Senior Division, 1st Court at Krishnagar, Nadia in Title Suit No. 112 of 2012, whereby the suit was decreed in preliminary form declaring the shares of the parties to the suit in respect of the properties delineated in Schedule –‘B’ appended to the plaint, are under challenge in the present appeal.

2. One Gobinda Biswas (in short, Gobinda) filed one suit for declaration with an alternative prayer for partition which was registered as Title Suit No. 112 of 2012. Facts spelt out in the plaint, which are germane, are as follows:

i) Property described in schedule-‘B’ was originally belonged to one Debendranath Banerjee, who by dint of one registered deed of sale transferred a demarcated portion from ‘B’ schedule property, which has been described in schedule ‘A’ appended to the plaint, to his son, Ashok @ Arjun Banerjee (in short, Ashok) annexing one map with the deed and that portion of property was duly mutated in name of Arjun in LR R-O-R and also in the assessment register of Krishnagar Municipality and Arjun paid rents to the competent authority;

ii) Ashok sold out that specific portion i.e. ‘A’ schedule property to the plaintiff by virtue of one registered deed of sale dated 18.06.2008 with a map annexed therewith and delivered possession thereof to the plaintiff, who also in the same manner got his name mutated in LR R-O-R and assessment register of Krishnagar Municipality and paid rents and since, an error had crept in the deed, one deed of rectification was also executed by Ashok in favour of Gobinda on 03.09.2010;

iii) Gobinda claimed that after the possession was delivered to him, he entrenched that portion of property with one boundary wall and even fixed one grill gate at the entrance and he planted mango and other fruit bearing trees thereon;

iv) The defendants are the co-sharers of ‘B’ schedule property and defendant nos. 1, 2 & 3 openly threatened to take forceful possession of ‘A’ schedule property from Gobinda and even Gobinda gave proposal to defendant nos. 1 to 3 to make partition of the entire ‘B’ schedule property if they were not ready to accept boundary of ‘A’ schedule property but the defendants rebuffed such claim of Gobinda and hence, the suit.

3. Following properties were described as ‘A’ and ‘B’ schedule properties:

‘A’ schedule – District- Nadia, P.S. Kotwali, Mouza- Krishnagar, J.L.No.92, Ward no. 19 (New) of Krishnagar Municipality, Holding no.32/2(new), Khatian no. 959(L.R.), Plot no. 2481 (RS) corresponding to 5120 (LR), Area- 3.90 out of 04 out of 68 decimals.

Measurement – North & South – 39 feet, Eastern Side- 34 feet, Western Side- 53 feet.

Boundary –

On the north – common passage (West to East);

On the south- House of Jiten Roy or RS plot no. 3356;

On the East – House of Subrit Sen or R.S.plot no. 25864;

On the West – House of Jayanta Roy or R.S.plot no. 3356.

‘B’ schedule - District- Nadia, P.S. Kotwali, Mouza- Krishnagar, J.L.No.92, Ward no. 19 of Krishnagar Municipality, Holding no.32/2(new), Khatian no. R.S. 2481, Plot no. 3356 (RS) corresponding to 5120(LR), Area- 68 decimals.

4. Only the defendant nos. 1, 2 & 3 (hereinafter referred to as the appellants) contested the suit by filing written statement. Specific defence taken by the appellants is as follows:

i) Ashok acquired ownership of a specific demarcated portion of 04 decimals of land from his father, Debendranath by virtue of one deed of sale vide. no. 184 dated 18.12.198 and Ashok possessed that portion of land separately from other portion of R.S. plot no. 3356;

ii) Arjun @ Ashok by virtue of two deeds of sale vide. nos. 3295 and 4605 dated 25.5.1999 and 30.6.1999 respectively sold out that specific portion of land, which is described as the ‘A’ schedule property, to Shibdas, husband defendant no.1, since deceased and to her with specific demarcation and delivered possession thereof to defendant no.1 and her husband and de