Point of Law : As it is seen that it is nobody’s case that suit in question is a suit coming within ambit of Order XX Rule 18(2) of Code and as such question of a preliminary decree does not arise at all.

JUDGMENT :

Heard Mr. P.S. Deka, the learned senior counsel assisted by Mr.P. Bhattacharya, the learned counsel appearing on behalf of the Appellant. None appeared on behalf of the respondent on call.

2. This Court vide an order dated 16/2/2009 admitted the instant appeal on the following three substantial questions of law which read as under :-

“1. Whether the passing of the decree of the plaintiffs’ suit for declaration of right, title and interest and partition of his share without ascertain the share of other co-sharer and without passed a preliminary decree us hit by the provision of Rule 18 of Order 20 and Section 54 of the Code of Civil Procedure, 1908 ?

2. Whether the finding of the learned lower appellate court mainly based on the finding of the trial court under issue No. 3 and 4 was just and proper against a decree passed for partition in exercise of power under Section 54 of the Code of Civil Procedure, 1908 ?

3. Whether both the courts below committed an error of law in declaring the share of the plaintiffs only without considering the other interest in property ?”

3. For the purpose of ascertaining as to whether the said substantial questions of law are involved in the instant appeal, it would be relevant to take note of the facts of the instant case. For the purpose of convenience, the parties herein are referred to as the same status they stood before the Trial Court.

4. The plaintiffs had filed a suit which was initially registered and numbered as Title Suit No. 3/2003 and subsequently reregistered and renumbered as Title Suit No. 125/2007. The case of the plaintiffs in brief is that 47 bighas 1katha 4 lechas of land covered by various dags under K.P. Patta No.697 at Howly town was settled in favour of Surya Kanta Choudhury, Gangadhar Choudhury and Bhaban Chandra Choudhury during the settlement operation of 1958-65. The suit land pertains to Dag No. 1238 of the said patta and admeasures a plot of land measuring 4 bigha 0 katha 12 lechas. The said plot of land have been described in Schedule A to the plaint. Out of the said Schedule-A plot of land, the plaintiff vide various purchase deeds either jointly or severally purchased 3bigha 1 katha 14 ? lechas of land. The said plot of land as per the plaintiffs is a compact plot of land which have been more specifically described in Schedule A(I) to the plaint. It is the further case of the plaintiffs that the defendants had purchased 3kathas 13 lechas out of the Schedule-A land from the original pattadars. At this stage, it is pertinent to take note of that out of 4 bighas 0 katha 12 lechas, the total land sold was 4 bigha 0 katha 7 1/3 lechas and there remained approximately another 4 ? lechas of land in the said Dag in the name of the original pattadars.

5. On 27/3/2003, it has been alleged in the plaint that the defendants broke down the boundary bamboo fencing of the plaintiffs and forcefully started construction of a sanitary tank in the western part of the plaintiffs’ land. Upon protest made by the plaintiff, the defendants expressed that they had purchased 5 lechas of land and that is why they have every right to make such construction. It is the further case of the plaintiffs that the defendants have endangered the plaintiffs’ right, title and interest over the suit land and the common enjoyment of the suit land as co-sharer with the defendants is not possible, for which the suit was filed. The plaintiffs prayed for declaring that the plaintiffs had right, title and interest to the extent of 3 bighas 1 katha 14 ? lechas within the Schedule A land and as shown in Schedule A(I) to the plaint; that the suit land shown in Schedule A(I) be partitioned and placed under the separate and exclusive possession of the plaintiffs after partitioning by evicting the defendants therefrom and to effect such partition necessary order be sent to the Collector, Barpeta; for permanent injunction restraining the defendants from raising any construction on any part of the suit land shown