JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. The instant civil Application has been filed challenging the impugned order dated 8th August 2023 passed by Additional District Judge, Baruipur in Misc. Appeal no. 22 of 2017. The petitioner/plaintiff filed a suit for partition with regard to his 1/36th share out of plot of land measuring   an area of 89 decimal under R.S. dag no. 232 in Mouza Balia. By the order impugned learned court below set aside the order of injunction passed by the Trial Court and thereby allowed the aforesaid Misc. Appeal.

2. Fact of the case as pleaded by plaintiff/petitioner in the plaint is that one Kalicharan Mondal was the absolute owner of the aforesaid land measuring 85 decimal and he died intestate leaving behind his wife Haridasi Mondal and three sons namely Srikanta, Bechulal and Subodh and one daughter Amdo Bala. Further case of the plaintiff is that on 15.01.1978 a deed of partition was executed among the aforesaid legal heirs of late Kalicharan and by virtue of allotment Srikanta and Bechulal became the absolute joint owners of the said land measuring 89 decimal. It is further alleged in the plaint that said Bechulal and Srikanta never partitioned the suit property among themselves in accordance with section 14 of the West Bengal Land Reforms Act 1955 but they went on to transfer the said suit schedule property to different persons.

3. Said Srikanta and Bechulal jointly gifted their alleged undivided 1/4th share measuring about 22.25 decimal out of said plot no. 232 to Premangshu Mondal, the opposite party/defendant no.1 by a registered gift deed. Plaintiff alleged that the said suit schedule property was never demarcated as per the requirement of law by its co-sharers and in the deed of gift it was only mentioned that the gifted land situates extreme northern side of the suit schedule plot. Thereafter on 16th Feb. 1981, said Srikanta and Bechu jointly gifted their alleged undivided 1/4th share measuring 22.25 decimal situates extreme southern side of suit plot to Debangshu Mondal i.e. opposite party/defendant n.2 by another registered deed of gift. Subsequently said Srikanta and Bechu jointly gifted their another 1/4th alleged undivided share to Pratap Mondal/opposite party by another registered gift deed mentioning that the land adjacent to the extreme southern portion of the suit schedule property is the gifted property. Finally said Srikanta and Bechu jointly gifted their remaining undivided 1/4th share of land measuring 22.25 decimal to one Santap Mondal i.e. opposite party /defendant no.8 by a registered gift deed mentioning that the southern portion of the suit schedule plot is the gifted property.

4. Plaintiffs specific case is that said nature of vague demarcation of land as mentioned in the deeds of gift has no recognition under the law as the same is not sufficient to identify the land involved in the gift deed. Subsequently aforesaid defendant no.8/opposite party Santap Mondal while possessing his share of land out of suit measuring 22 ¼ , sold a portion of land measuring 1 katha 8 chittack of land out of suit property i.e 1/36th share to Monoj Roy, who is the plaintiff/petitioner herein by a registered sale deed without demarcating said land for identification of the portion of the land of the petitioner/plaintiff.

5. Plaintiff/petitioner’s further case is after purchase of the undivided share of the suit schedule land by the petitioner/plaintiff, the opposite party/defendant no.1 on the ground of non notified co sharer filed a case for preemption which was registered as Misc. Case no. 114 of 2014 and sought to preempt his prior right of purchase of the said land, but the said preemption case was subsequently withdrawn. Plaintiff/Petitioner in this context submitted that opposite party/defendant no.1 by filing the aforesaid preemption case has admitted that the suit property is ejmal property of the plaintiff and the defendant and no partition has taken place in respect of the suit property. In