JUDGMENT :

SOUMEN SEN, J.

1. The present appeal has arisen out of a preliminary decree dated July 20, 2012 passed by the learned Civil Judge (Senior Division), Second Court at Barasat, North 24 Parganas, in a suit for partition being Title Suit No. 139 of 2008.

2. The plaintiffs/respondents have filed the instant suit seeking partition of properties measuring approximately more or less 16 cottahs 9 chittaks of land. They claimed that the plaintiffs no. 4 and 5 along with the defendant/appellant and Shanti Ranjan Naha being the predecessor in interest of the plaintiffs no. 1 to 3 were brothers, who purchased land measuring approximately 7 cottahs 7 chittaks comprised under Khatian no. 90, R.S. Dag No. 6434. The said property was claimed to be adjacent to the property belonging to their mother measuring approximately more or less 9 cottahs 2 chittaks comprised under R.S. Dag No. 6644, where they were already living as a family with their parents. The property belonging to the mother was purchased by the four brothers by way of two deeds executed in the year 1985. By virtue of such purchase the four brothers became joint owners of 16 cottahs 9 chittaks of land, which they were holding jointly. The property was later developed and two permanent structures wrere constructed in the property. After the death of Shanti Ranjan Naha, the plaintiffs no. 1 to 3, who are his widow and children, inherited one-fourth share of Shanti Ranjan Naha in the property. In spite of the request of the plaintiffs to have an amicable partition of the property, the sole defendant/appellant refused to have the same, resulting in filing of the suit for partition.

3. The defendant/appellant has entered appearance and contested the suit by filing written statement. Principally, the suit is contested on two grounds, namely, (1) on the ground that the suit is bad for non-joinder of necessary parties and (2) the suit is barred by partial partition. In the written statement, however, it was not alleged that the suit was bad for non-joinder of necessary parties. The defendant/appellant, however, filed an application under Order I Rule 10 of the Code of Civil Procedure for impleadement of five sisters, who were left out in the suit for partition.

4. The learned advocate for the appellant submits that all the properties left behind by the father were not included in the schedule of the suit for partition. The learned advocate for the appellant has relied upon a decision of the Supreme Court in the case of Kenchegowda (Since Deceased) by Legal Representatives vs. Siddegowda alias Motegowda, (1994) 4 SCC 294 in support of his submission that when all the joint family properties were not made the subject matter of the suit nor the co-sharers are impleaded, the suit is bad for partial partition.

5. Before the trial court it appears that reliance was placed on Jogendra Nath Mukerji vs. Jugobundhu Mukerji and Another (Minor) by their Mother and Guardian Nistarini Dabi and Others, ILR 14 Cal. 122 in which Chief Justice Petheram dismissed the partition suit since the plaintiff has sought to partition only a portion of joint property.

6. Admittedly, the trial court dismissed the said application on January 13, 2009 after taking into consideration that the properties were acquired by the predecessor in interest of the plaintiffs and the defendant by virtue of registered deeds dated August 12, 1985. The trial court accepted the contention of the plaintiffs that the daughters did not acquire any interest over the property covered under two deeds executed in favour of four sons. It was further held that for proper adjudication of the issues raised in the suit, the said daughters are not necessary.

7. It appears from the impugned judgment that the said order dated January 13, 2009 was affirmed by this court and, accordingly, the trial court rejected the contention of the defendant/appellant at the trial of the suit that the suit is bad for non-joinder of necessary parties. Significantly