JUDGMENT :

(Siddhartha Roy Chowdhury, J.) :

1. This appeal preferred by the plaintiffs, assails the judgement passed by learned 5th Court of Civil Judge (Sr. Div.), Alipore on 3rd September, 2012.

2. To appreciate the lis, we need to indicate the facts of the case in brief.

3. Depicting themselves as sons of late Samar Chowdhury, the plaintiffs/appellants contended that inter alia that Samar Chowdhury was the original owner of the properties in suit, who died intestate on 17th December, 1983 leaving behind him surviving his widow, Smt. Bina Chowdhury and four sons as his legal heirs and successors, who acquired 1/5th each share in respect of the suit properties. Smt. Bina Chowdhury died intestate on 6th August 2006 leaving behind four sons as her legal heirs and representatives. Thus the four sons of late Samar Chowdhury and late Smt. Bina Chowdhury became owners having 1/4th share each in respect of the suit properties. By filing the suit for partition against their brother Dilip Chowdhury, the plaintiffs Sri Pradip Chowdhury, Sanjib Chowdhury and Rajib Chowdhury prayed for preliminary decree in respect of their 3/4th share in the suit property.

4. The defendant Dilip Chowdhury contested the suit by filing written statement before the Trial Court, wherein he admitted that after demise of his parents Samar Chowdhury and Smt. Bina Chowdhury he has acquired 1/4th share in respect of the assets set out in the schedule of the plaint. Learned Trial Court framed following issues :

1) Is the suit maintainable in its present form and in law?

2) Do the plaintiff have any cause of action to file the suit?

3) Is the plaintiff a co-sharer in respect of the suit property?

4) Is the plaintiff entitled to get the Decree as prayed for?

5) What other relief if any plaintiff is entitled to get?

5. Parties were called upon to adduce evidence in support of their respective case.

6. Learned Trial Court after considering the evidence on record was pleased to answer the issue no 4 & 5 against the plaintiffs and was pleased to dismiss the suit on the ground that the parties failed to produce any document to establish the title of Samar Chowdhury in respect of the properties in suit.

7. This judgement fails to satisfy the plaintiffs and aggrieved plaintiffs have preferred this appeal.

8. Assailing the impugned judgement, learned Senior Counsel Mr. Harik Kr. Mitra submits that the parties before the learned Trial Court did not raise any dispute regarding their share in the suit property rather admitted the share both in pleading and deposition. Therefore the suit ought to have been decreed on admission by the learned Trial Court. But learned Trial Court, without considering the pleadings properly framed issues and directed parties to lead evidence but failed to appreciate the evidence on record and thereby dismissed the suit, instead learned Trial Court ought to have pronounced judgement granting preliminary decree on admission taking into consideration the provision of Order XII Rule 6 of the Civil Procedure Code, soon after the first hearing of the suit, having found that parties are not at issue in respect their extent of share in the suit properties.

9. Taking us through the pleadings of the parties and their oral testimony Mr. Mirta, learned Senior Counsel submits that the impugned judgement may be set aside and decree in the preliminary form may be passed declaring the admitted share of the parties.

10. It is pertinent to mention here that during pendency of appeal, one of the appellants Sanjib Chowdhury died and consequent upon the death of Sanjib Chowdhury and his transfer of 1/5th share in respect of property at Behala, the extent of share of the parties got changed. On 27th June, 2022 the parties to the appeal exchanged their notes depicting the extent of share of respective parties and they are found to be not at issue; excerpt of which is repro