B.K. Sharma, J.

1. Heard Mr. S.M. Chakraborty, learned Counsel for the Appellant as well as Mr. D.K. Biswas, learned Counsel representing the Plaintiff-Respondent No. 1. The Appellant was the pro forma Defendant No. 3 in the suit in question.

2. Briefly stated the facts leading to filling of the instant second appeal against the concurrent findings of fact of the trial court and the first appellate court are as follows.

3. One Gokul Chand Sinha died in tested leaving behind the Appellant and the Respondents as his legal heirs and successors. The property left by him was to be divided among his legal heirs as per the provisions of the Hindu Succession Act.

4. The Plaintiff-Respondent filed title Suit (Partition) No. 8/2005 praying for partition of the property left by his father late Gakul Chand Sinha. In paragraph 2 of the plaint, it was categorically stated that the pro forma Defendant Nos. 3, 4 and 5 who are the daughters of late Gakul Chand Sinha were satisfied with the properties given to them and as such they became disclaimers in respect of their share of property left by their father, late Gakul Chand Sinha forming subject matter of the suit. With such categorical statement, it was further averred in the plaint that consequently it was the Plaintiff and the principal Defendants who alone were interested in the suit land for partition. It was further stated in the plaint that because of the disclaimers, the said 3(three) daughters of late Gakul Chand Sinha had been made party Defendants and pro forma Defendant Nos. 3, 4 and 5 and that if they would contest the claim of the Plaintiff, they would be treated as principal Defendants in the suit.

5. In spite of service of notice, the pro forma Defendants including the Appellant did not contest the suit filed by the Plaintiff-Respondent and consequently the learned trial court by its judgment and order dated 22.12.2006 allowed the suit by granting the partition. The operative part of the judgment and decree is reproduced below: -

"ORDER

12. In view of findings and decision arrived in the forgoing issues I hold that the Plaintiff is entitled to get one-third share of the suit land left by late Gakul Chand Sinha. Defendants are directed to make partition the suit property amicably as per preliminary decree within 6(six) months and if it is not settled by this time any of the parties are at liberty to approach this Court to get final decree.

No cost.

Accordingly prepare preliminary decree.

13. Announced.

6. Towards passing the aforesaid judgment and decree dated 22.12.2006, the learned trial court had formulated the following issues: -

1. Whether there is any cause of action for this suit.

2. Whether the suit is maintainable in its present form and whether there was any partition amongst the parties earlier.

3. Whether the suit is barred by non-joinder of parties.

4. Whether the Plaintiff is entitled to get any share in the suit property, and, if so, what is the quantum of his share.

5. Whether the Plaintiff is entitled to get the decree as prayed for.

6. To what other relief/reliefs the parties are entitled?

7. In the trial proceeding, the Plaintiff-Respondent examined four witnesses as PW1, PW2, PW3 and PW4. The Plaintiff-Respondent also exhibited 7(seven) documents as Exts. 1 to 7. The Defendant side also adduced evidence of DW1, DW2, DW3 and DW4. However, no documentary evidence was adduced by the Defendant.

8. As regards the claim of disclaimer, specifically pleaded in paragraph 2 of the plaint, the learned trial court while answering the issue No. 4, i.e., whether Plaintiff is entitled to get any share in the suit, and, if so, what is the quantum of his share, observed, thus: -

From the pleadings and evidence of both parties I find that Late Gakul Chand Sinha had/have two sons namely Late Lal Mohan Sinha and Shri Tarun Kumar Sinha. I also find that Defendant No. 1 Smt. Tulsi rani Sinha is the widow of Late Gakul Chand Sinha. Late Gakul Chand Sinha has also 3 daughters who are the Defen