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Judgment
This first appeal is directed against the preliminary decree dated 30th July, 2012 passed by the learned Civil Judge (Senior Division), Malda in Partition Suit No. 314 of 2009 at the instance of the plaintiffs/appellants.
In the said suit, the plaintiffs claimed their 1/3rd share in the suit property. They also admitted in the plaint that the defendants have 2/3rd share in the suit property. Learned Trial Judge after considering the pleadings of the parties and their evidence, passed the preliminary decree declaring plaintiffs'' 1/3rd share in the suit property. The defendants'' 2/3rd share in the suit property was also declared by the learned Trial Judge in the preliminary decree.
In view of such relief granted by the learned Trial Judge in the preliminary decree, we feel that plaintiffs have nothing to be aggrieved against the preliminary decree passed in the said suit as, in fact, the claim of the plaintiffs was duly endorsed by the learned Trial Judge in the preliminary decree. However, on perusal of the memorandum of appeal, we find that the plaintiffs took up several grounds therein for challenging the legality of the order rejecting their application under Section 4 of the Partition Act. As a matter of fact, the plaintiffs filed an application under Section 4 of the Partition Act and the plaintiffs'' said application was rejected by the learned Trial Judge vide Order No. 35 dated 26th June, 2012.
On perusal of the memorandum of appeal, we find that though those grounds were mentioned in the memorandum of appeal, but the order rejecting their application under Section 4 of the Partition Act vide Order No. 35 dated 26th June, 2012 has not been mentioned in the preamble of the memorandum of appeal. The plaintiffs have restricted their challenge with regard to the preliminary decree passed on 30th July, 2012 in this appeal.
Since the order being No. 35 dated 26th June, 2012 rejecting the plaintiffs'' application under Section 4 of the Partition Act has not been challenged in this appeal, we refrain ourselves from considering the legality of the said order passed by the learned Trial Judge rejecting the plaintiffs'' application under Section 4 of the Partition Act.
We, thus, dismiss this appeal with this rider that while dismissing the appeal, we have not considered the legality of the order passed by the learned Trial Judge rejecting the plaintiffs'' application under Section 4 of the Partition Act as the said order is not the subject matter of challenge in this first appeal.
In view of dismissal of the appeal in the manner as aforesaid, no further order need be passed on the injunction application. The said application being CAN 3057 of 2016 is, thus, deemed to be disposed of.