The main legal point established in the judgment is the application of the doctrine of res judicata, the requirements of Section 34 of the Specific Relief Act, and the lack of evidence for the claims regarding Schedule 'C' and 'D' properties.

JUDGMENT :

MADHURESH PRASAD, J.

1. The plaintiff in the suit is the appellant in the instant proceedings.

2. The plaintiffs approached the Court seeking a declaration that the lands within Schedule ‘A’ is part of ancestral dwelling house purchased from the funds earned through the coparcenary business of the plaintiff’s father. Relief has also been sought with respect to tenancy rights of Schedule ‘B’ property consisting of two godown-cum-shop-rooms. They have also claimed share in the gold ornaments, 45 Bhories 6 annas and cash specified in Schedule ‘C’ as also a share in the movable assets as specified in Schedule ‘D’.

3. The plaintiffs made out a case that one Oudh Behari Bhagat carried on coparcenary business governed by the Mitakshara School, along with his three sons Ram Nagiana Prasad Bhagat, Rameswar Prosad Bhagat and Ram Chandra Prosad Bhagat. Upon demise of Oudh Behari Bhagat on 14.01.1939, Ram Nagiana Prasad Bhagat became the ‘karta’. The three brothers along with Barunibala Devi, their mother, became coparceners.

4. The Schedule ‘A’ property was purchased by a Registered Deed dated 05.04.1955 from funds of the joint family business and was thrown in the common stock of the property, being enjoyed by all. Ram Chandra Prosad Bhagat, one of the brothers died in 1959, where after his ¼th share devolved upon Barunibala Devi. It is alleged that the same property was assessed and recorded by the Burdwan Municipality in the name of Ram Nagiana Prasad Bhagat with Rameswar Prosad Bhagat as a joint owner in 1960-61. The plaintiff has asserted that Ram Nagiana Prasad Bhagat, himself had submitted this property as joint property in two arbitration proceedings which culminated in awards dated 16.03.1978 and 16.03.1979. Further case of the plaintiff is that Barunibala Devi gifted her total moiety share and whatever self-acquired property she had to Ram Kumari Devi (plaintiff No. 6), wife of Rameswar Prosad Bhagat on 13.07.1979.

5. In so far as Schedule ‘B’ property is concerned, the plaintiff claimed that Maharaja Dhiraj of Burdwan, who was also she-bait of the estate had inducted Oudh Behari Bhagat as tenant and after his demise, the tenancy rights devolved upon the three brothers and the mother. The ownership of the premises, however, has vested in J&R Hutchison Private Limited (Proforma Defendant No. 8) who are now receiving the rent. The successor shebait of Burdwan Raj has also been arraigned as Defendant No. 7.

6. In so far as Schedule ‘C’ property is concerned, the plaintiff claimed that balance of the sale proceeds, being Rs. 37,000/- was received in the hands of Ram Nagiana Prasad Bhagat, from the sale of some estate of Oudh Behari Bhagat. After his demise the proceeds are lying with his legal heirs, namely defendants No. 1 to 5. Together the plaintiffs claim 5/12th share in Schedule ‘C’ property. Schedule ‘C’ and Schedule ‘D’ properties are both derived from one Bhagogani Devi, wife of Brindaban Behari Bhagat aunt of Ram Nagiana Prasad Bhagat and Rameswar Prosad Bhagat the same includes the above noted sale proceeds of Plot No. 3200 and remaining gold ornaments.

7. Schedule ‘D’ properties are some sundry movable items also said to be derived from the same Bhagogani Devi.

8. The cause of action as stated by the plaintiff is that taking advantage of non-inclusion of the scheduled properties in Title Suit No. 79 of 1986 and 113 of 1979, earlier filed by Ram Nagiana Prasad Bhagat, the defendants, legal heirs and representatives of Ram Nagiana Prasad Bhagat are trying to sell the Schedule ‘A’ property, transfer the tenancy rights in Schedule ‘B’ property and denying share to the plaintiffs in the Schedule ‘C’ and ‘D’ properties as also denying the marriage expenses for marriage of the plaintiff’s daughter.

9. The defendants on the other hand have by filing a written statement denied the claim of the plaintiff regarding their being any unity of title and/or possession over the Schedule ‘A’ land. It is specific case in the W.S. that the