The burden of proof in partition suits lies on the defendant to dispute plaintiffs' claims regarding ownership of properties left by their ancestor.

JUDGMENT

Arindam Lodh, J. - This second appeal under Section 96 of the CPC arises out of the judgment and decree dated 01.05.2019 passed by the learned Civil Judge (Senior Division), Court No. 2, West Tripura, Agartala in case no. T.S. (Partition) 22 of 2006.

2. Facts in a short compass are that, the three sisters and the defendant are the daughters and son of the deceased Santosh chandra Pal. The plaintiffs i.e. daughters of late Santosh chandra Pal had requested on repeated occasions to their brother, Biswajit Pal i.e. the sole-defendant of the instant suit to partition the movable and immovable properties left behind their father, late Santosh chandra Pal at Agartala as well as two flats in Kolkata.

3. After exchange of pleadings, issues were framed. On the basis of issues, evidences were led by the parties to the suit. Some documents were introduced relating to the properties in question. After completion of recording evidences and having heard the learned counsel appearing for the parties, the learned trial Judge decreed the suit in favour of the plaintiffs, which is as under:

'Accordingly, plaintiff Nos. 1 to 3 and sole defendant are entitled to 1/4th share each over the land property measuring 0.0990, specifically mentioned in khatian no.29650 of Mouja-Agartala Town Sheet No. 13, Hal dag no. 848 and also, are entitled to 1/ 4th share each over the suit property mentioned as, Flat situated at Ragunathpur, Baguiati, P.O- Jengra, Kolkata- 59, West Bengal, in the apartment namely, 'Sankhanir Apartment', as well as, is entitled to 1/ 4th share each over Flat on the first floor measuring 629 Sq. feet with common area of 198 Sq. feet, which in total measures 827 Sq. feet, situated and lying at the building called, 'ARVIND TOWER', a portion of premises 242/IB, Acharya Prafulla Chandra Road, Kolkata- 700004, P.S- Burtolla.

Parties in the suit are directed to make amicable partition of the aforementioned entitled suit properties within 2(two) months, failing which parties are at liberty to approach before this court for passing final decree accordingly in the suit.

Thus, the suit is disposed of on contest without costs in preliminary form.'

4. The plaintiffs have no grievance about the said decree passed by learned trial Judge and they have not preferred any appeal. However, the defendant being aggrieved of the judgment and decree, as stated here-in-above, has preferred the instant first appeal before this court only relating to the properties situated at Kolkata.

5. We have heard Mr. SK Deb, learned senior counsel assisted by Mr. PK Pal, learned counsel appearing for the defendant-appellant, here-in-after referred to as the defendant. Also heard Mr. SM Chakraborty, learned senior counsel assisted by Ms. A. Pal, learned counsel appearing for the plaintiff-respondents, here-in-after referred to as the plaintiffs.

6. At the very outset, Mr. SK Deb, learned senior counsel appearing on behalf of the defendants has confined his argument within the disputed properties at Kolkata, i.e. the flats situated at Raghunathpur and Arvind Tower. In order to dispute the partition of the said two flats, Mr. Deb, learned senior counsel has candidly submitted that the plaintiffs have not been able to substantiate the facts of existence of these two flats, and more particularly, the ownership of the two flats by their father, late Santosh chandra Paul. Mr. Deb, learned senior counsel has tried to persuade this court that the plaintiffs have not made any averment in their plaint regarding the ownership of flat situated at Raghunathpur by their father, late Santosh Chandra Paul. Consequently, Mr. Deb, learned senior counsel has disputed the ownership of late Santosh chandra Paul over the flat situated at Arvind Tower for the reason that the plaintiffs though has produced Title Deed relating to the flat owned by late Santosh Chandra Paul at Arvind Tower in Kolkata, but, this document has not been proved according to the rule of Evidence. In other words, learn