JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Being aggrieved and dissatisfied with the judgment and decree dated 31.05.2013 passed by Additional District Judge, 1st Court Alipore, in TA 247 of 2002 present second appeal has been preferred. By the impugned judgment learned court below has set aside the final decree passed by Civil Judge (Senior Division) 2nd Court, Alipore, in T.S. No. 149 of 1978.

2. The instant suit is a suit for partition and settlement of accounts. Plaintiffs case in a nutshell is that plaintiffs are the legal heirs of deceased Habibullah Laskar. Said Habibullah died leaving behind 6 sons and daughters. Said deceased Habibullah had residential house and land at Mouza Hatiara as mentioned in the schedule to the plaint. The plaintiffs and the defendants are the great grandsons of the original owner. Subsequently some parties purchased the property of other co-sharers. Defendant no.35 of the said suit namely Sahanabi Laskar transferred some of his shares in the property in question in favour of Ashraf Ali being the plaintiff no.3 by a deed dated 05.01.1959. Subsequently the plaintiff no. 3, 4 and 5 and the defendant no 43 being the wife of Ashraf Ali Laskar purchased 2 cottahs 6 chitacks of land in CS dag no. 165 from the heirs of Lal Mohammad, being the defendant no. 34 to 38. Plaintiffs are possessing their own share beside their purchased share with the defendant jointly and the plaintiffs requested the defendants on several occasion for partition of the suit property by metes and bounds but the defendant refused to make partition and for which plaintiff filed the suit.

3. Defendant no.1 contested the suit by filing written statement contending that the suit is not maintainable and the suit is also bad for non-joinder and mis-joinder of parties and some of the properties in the suit have already been vested to the Government of West Bengal and the suit is also bad for non service of notice under section 80 of the Code of Civil Procedure. Accordingly defendant no,1 has prayed for dismissal of the suit. Defendant no. 11 to 11 (gha) appeared by filing vokalatnama. Defendant no. 35 (ka) to 35 (cha) and defendant no. 11 to 21, defendant no.27 to 33, defendant no 22 to 26, 34 to 38, defendant no. 42, 43, 39 and 44 appeared in the suit through their respective lawyers.

4. Learned Trial Court decreed the suit in favour of plaintiff, in preliminary form against contesting defendants and also directed the parties to make amicable partition by metes and bounds within three months, failing which liberty was given to the plaintiff to partition the suit property by appointing partition commissioner. As the parties failed to make partition amicably in terms of preliminary decree, the court appointed partition commissioner who submitted his report. Neither party filed any objection against the report of the partition commissioner and as such the Trial Court passed final decree considering the report filed by the partition commissioner

5. Being aggrieved by the final decree passed by the Trial Court on 17th June, 1998 first appeal was preferred before the court below, being aforesaid T.A. No. 247 of 2002. While the said title appeal came up for hearing before the court below, he observed that the final decree is inconsistent with the preliminary decree. Moreover, legal heirs of the original defendant no.35 have not been made party in the instant suit. Accordingly court below held that declaration of share has not been made properly and as a consequence, division and allotment of property is also incorrect and he further held that all plots have/had not been considered by the partition commissioner in proper manner in terms of preliminary decree. He also pointed out that the final decree was passed without serving notice and as such he concluded that although final decree passed by the trial court is not void but erroneous as it was passed after the death of defendant no. 35 and on this score, the final decree is liable to be set aside.