JUDGMENT : HIRANMAY BHATTACHARYYA, J. 1. The defendant No.3 in a suit for partition has preferred the instant appeal challenging the preliminary decree passed by the learned Civil Judge, (Senior Division), First Court at Barasat in Title Suit No. 313 of 1999. 2. The case made out by the plaintiff/respondent in the plaint of Title Suit No. 313 of 1999 is that the 'C' schedule property and land in khatian No. 1097 exclusively belonged to Shib Shekhar Das where as plot No. 952 of Schedule 'B' was jointly owned by Shib Shekhar Das, Himanshu Shekhar Das and Sashanka Shekhar Das. The plaintiff acquired interest in plot No. 952 of schedule 'B' of the plaint by virtue of a deed of gift executed by his father namely Shib Shekhar Das and also by virtue of various deeds of conveyance. It is the specific case of the plaintiff that properties have not been partitioned and the plaintiff faced inconvenience in ejmal possession of the property and as such he has filed the instant suit for partition. Thus, the plaintiffs prayed for preliminary decree in respect of 'B' and 'C' schedule property. 3. The defendant Nos. 1 and 4 appeared in the suit and contested the same by filing a written statement but did not adduce any evidence in support of their defence case. The defendant Nos. 5 to 11, however, did not contest the said suit. 4. The defendant No. 3 contested the said suit by filing a written statement denying the allegations made by the plaintiffs in the said suit. The said defendant has claimed his right, title and interest in the properties involved in the suit by virtue of a separate deed executed by his father in his favour. 5. The learned Trial Judge by a judgment and decree dated December 19, 2008 decreed the said suit on contest against the defendant No. 3 and ex perte against the rest in preliminary form. The learned Trial Judge was pleased to hold that the plaintiff has 19.38 decimals of land in plot No. 952 of schedule 'B'. The learned Trial Judge further held that the defendant Nos. 1 and 2 has 3.88 decimals of land each in the said plot and the defendant No. 4 has decimals of land in the said plot. The learned Trial Judge was pleased to hold that the plaintiff has 19.38 decimals of land in plot No. 952 of schedule 'B'. The learned Trial Judge further held that the defendant Nos. 1 and 2 has 3.88 decimals of land each in the said plot and the defendant No. 4 has decimals of land in the said plot. It was held that the defendants No. 3 has 6.38 decimals of land in plot No. 952 and the defendant Nos. 5 to 11 have 7/10 decimals each in the said plot. It was further held that the plaintiff has 8 annas share and the defendant Nos. 1 to 4 jointly have 8 annas share in all the plots of khatian No. 1097. The learned judge held that the plaintiff and the defendant Nos. 1 to 4 have 1/5th share each in schedule 'C'. 6. The defendant No. 3 has challenged the said preliminary decree passed by the learned court below in the instant appeal. 7. Mr. Debasis Roy, learned Advocate appearing on behalf of the defendant No.3/appellant herein, restricts his argument in this appeal with regard to the allotment of share of the defendant No.3 in plot No. 952 and submitted that the learned Judge of the court below erred in law by holding that the defendant No.3 has only 6.38 decimals of land in plot No. 952. He further submitted that the learned Trial Judge erred in law by holding that out of 26 decimals, Shib Shekhar Das had 13 sataks of land after execution of the registered deed of gift in favour of the plaintiff and upon his death all his legal heirs being the plaintiff and the defendant Nos. 1 to 4 acquired 2 3/5 decimals each in the plot no. 952. He further submitted that the learned Trial Judge erred in determining the shares of the respective parties in the said preliminary decree. In course of his submission Mr. Roy moved the application under Order 41 Rule 27of the Code of Civil Procedure filed by the defendant no. 3 /appellant herein, being C.A.N. No. 11099 of 2012 praying for production of additional evidence. By filing of the said application the defendant No. 3 sought to produce the registered deed of gift executed by his father namely, Shib Shekhar Das on September 28, 1989 in his favour. 3 /appellant herein, being C.A.N. No. 11099 of 2012 praying for production of additional evidence. By filing of the said application the defendant No. 3 sought to produce the registered deed of gift executed by his father namely, Shib Shekhar Das on September 28, 1989 in his favour. The said application was allowed vide order dated March 20, 2019 and the defendant No. 3 was permitted to adduce the additional evidence. Pursuant to the liberty granted by this court the defendant No. 3 namely Samir Kumar Das adduced evidence on March 27, 2019. The original deed of gift executed by Shib Shekhar Das in favour of the defendant No. 3 was tendered by the defendant No.3 in evidence and the same was marked as Exhibit "A". 8. However, no question in cross examination was put to the defendant No. 3 challenging the deed of gift being Exhibit-A. However, the defendant No. 3 in his evidence on cross-examination admitted that his father has executed another deed of gift in favour of Tarit Kr. Das the plaintiff/respondent herein. 9. It appears from Exhibit 6 that Shib Shekhar Das was the recorded owner of plot No. 952 to the extent of 26 decimals. The said Shib Shekhar Das executed a registered deed of gift dated September 28, 1989 in favour of the plaintiff which is marked as Exhibit "4". By virtue of Exhibit "4", the plaintiff acquired right, title and interest to the extent of 13 decimals in plot No. 952. In para 2 of the plaint the plaintiff has admitted that Shib Shekhar Das executed two separate deeds of gift in favour of his two sons being the plaintiff and the defendant No. 3. The plaintiff adduced evidence as PW1 and has specifically admitted the fact of execution of deed of gift by the father in favour of the defendant No. 3. In cross-examination the said witness reiterated his stand stating that Shib Shekhar Das transferred his share in plot No. 952 in favour of the defendant No. 3 and the plaintiff by executing separate registered deeds of gift and by virtue of the said transfer the plaintiff and the defendant No. 3 acquired share to the extent of 13 shataks each in plot No. 952. From the additional evidence adduced by the defendant no. From the additional evidence adduced by the defendant no. 3 before this court it appears that the said Shib Shekhar Das transferred his remaining 13 decimals in plot No. 952 as well as 1 acre decimals of land in plots in Khatian No. 1097 in favour of the defendant No. 3/appellant herein by a registered deed of gift dated September 28, 1989 which is marked as "Exhibit-A". 10. Thus, as per the deeds of gift executed by Shib Shekhar Das in favour of the plaintiff / respondent No. 1 and the defendant No. 3 / appellant herein the plaintiff and the defendant No. 3 has 13 decimals each in plot no. 952. By virtue of the said deeds of gift the plaintiff and the defendant no. 3 has 1 acre decimals of land each in respect of the plots under Khatian No. 1097 within Mouja Gangapur falling within the Schedule-B to the plaint. 11. Himangshu Shekhar Das i.e. the predecessor in title of defendant Nos. 5 to 11 sold and transferred 5 decimals of land in plot No. 952 in favour of the plaintiff and the defendant No. 3 by a registered deed being "Exhibit-3". Thus by virtue of "Exhibit3", the plaintiff and the defendant No. 3 acquired further 2.5 decimals of land each in plot No. 952. 12. The other co-owner of plot No. 952 namely Sasanka Shekhar Das sold decimals of land in plot No. 952 in favour of Meera Rani by a registered deed of sale dated May 22, 1970 which is marked as Exhibit 1. The said Meera Rani sold her share in plot No. 952 in favour of the plaintiff and defendant Nos. 1 to 3 and as a result of such transfer by Meera Rani, the plaintiff and the defendant Nos. 1 to 3 acquired decimals of land each in plot No. 952. That in the meantime the defendant No. 1/ respondent No. 2 herein namely, Gouri Das died intestate and upon her death her share in plot No. 952 to the extent of decimal devolved upon the plaintiff and the defendant Nos. 3 and 4 only in equal shares. As jointly submitted by the Learned Advocates of the respective parties that the defendant No. 2 is not an heir of Gouri Das and as such he did not inherit any share in the said property upon the death of Gouri Das. 3 and 4 only in equal shares. As jointly submitted by the Learned Advocates of the respective parties that the defendant No. 2 is not an heir of Gouri Das and as such he did not inherit any share in the said property upon the death of Gouri Das. Thus, the plaintiff and the defendant nos. 3 and 4 each got 0.427 decimals of land in plot No. 952 by virtue of inheritance as heir of Gouri Das. So by virtue of transfer as well as by inheritance the plaintiff acquired (1 acre +2.5+1.281+0.427) i.e. 1 acre 29.708 decimals in schedule-B property. The defendant No. 3 also has (1 acre +2.5+1.281+0.427) i.e. 1 acre 29.708 decimals in schedule-B property. The defendant No.2 has 1.281 decimals and defendant No. 4 has 0.427 decimals in schedule B property. 13. The original defendant Nos. 5 to 11 jointly has 8.5 decimals of land in schedule B property. During the pendency of the appeal the original defendant/respondent nos. 5, 8, 9 and 11 have died. Upon the death of the respondent Nos. 5, 9 and 11, the heirs, heiresses and legal representatives of the said deceased respondents have been duly substituted in the instant appeal. Since, the heirs of the deceased respondent no. 8 were already on record, the name of the respondent no. 8 was expunged from the cause title of the instant appeal. As such the respondent Nos. 5(a), 6, 7, 9(a), 9(b), 10 and 11(a) jointly have 8.5 decimals of land in schedule-B property. 14. The plots falling within schedule 'C' property absolutely belonged to Shib Shekhar Das and the learned Trial Judge held that the plaintiffs and the defendant Nos. 1to 4 being the legal heirs of Shib Shekhar Das are entitled to get 1/5th share each in the 'C' schedule property. Neither the appellant nor any other party to this appeal have challenged the findings of the learned trial Judge with regard to the allotment of shares in between the plaintiffs and the original defendants nos. 1 to 4 in so far as the plots comprised in schedule 'C' properties are concerned. 15. Schedule-C property comprises of 6 plots and the total area of land falling within Schedule-C property is 1.92 acres. Thus, the share of Gouri Das in Schedule-C property comes to 0.384 acres. 1 to 4 in so far as the plots comprised in schedule 'C' properties are concerned. 15. Schedule-C property comprises of 6 plots and the total area of land falling within Schedule-C property is 1.92 acres. Thus, the share of Gouri Das in Schedule-C property comes to 0.384 acres. However upon the death of Gouri Das her share in the said property devolved upon the plaintiff and the defendant Nos. 3 and 4 only in equal shares i.e. 0.128 acres each. As jointly submitted by the Learned Advocates of the respective parties that the defendant No. 2 is not an heir of Gouri Das and as such he did not inherit any share in the said property upon the death of Gouri Das. The plaintiff and the defendant nos. 3 and 4 each has (0.384+0.128) acres i.e. 0.512 acres and the defendant No. 2, however, has 0.384 acres in Schedule-C property. 16. Thus, the plaintiff has 1 acre decimals within Mouja Gangapur in Schedule-B property. The defendant No. 3 also has 1 acre decimals within Mouja Gangapur in Schedule-B property. 17. The plaintiff has 17.208 decimals in plot No. 952 within Mouja Nebadhai in Schedule-B and the defendant no. 3 also has 17.208 decimals in plot No. 952 within Mouja Nebadhai in Schedule-B. The defendant No. 2 has 1.281 decimals of land within Mouja Nebadhai in Schedule-B property and the defendant No. 4 has 0.427 decimals within Mouja Nebadhai in Schedule-B property. The respondents Nos. 5(a), 6, 7, 9(a), 9(b), 10 and 11(a) jointly have 8.5 decimals of land within Mouja Nebadhai in schedule-B property. 18. The plaintiff and the defendant Nos. 3 and 4 each have 0.512 acres in schedule-C property and the defendant No. 2 has 0.384 acres in schedule-C property. 19. The judgment and preliminary decree dated December 19, 2008 passed by the learned Trial Judge is hereby modified only to the extent as indicated above. 20. Learned Trial Judge is directed to take note of the modifications in the preliminary decree as indicated above and to proceed with the final decree proceedings as expeditiously as possible. 21. The appeal is allowed thereby modifying the preliminary decree to the extent as indicated above. 22. The office is directed to send down the Lower Court records along with the additional evidence and the Exhibit-A to the Learned Court below forthwith. I agree. : Harish Tandon, J.