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Mr. Sourav Guchhait Heard on : 20.02.2025, 27.02.2025 05.03.2025, Judgment on : 11.03.2025 Sabyasachi Bhattacharyya, J.:-

1. The present appeal has been preferred at the behest of the defendants in a suit for declaration that a partition deed dated April 7, 1997 is void ab initio, for declaration of the title and shares of the parties and for partition as well as consequential reliefs. The learned Trial Judge, while observing that the said deed of partition was void ab initio and as such the relief of declaration sought in respect thereof was superfluous, arrived at the conclusion that the suit was not barred by limitation on account of the said declaration having been sought beyond the limitation period as stipulated in Article 59 of the Schedule to the Limitation Act, 1963. Consequentially, the shares of the parties were declared in preliminary form. Being thus aggrieved, the present appeal has been preferred.

20. The partition deed was executed and registered on April 7, 1979. The original plaintiff no.1 Kamala, as P.W.1, in her cross-examination dated November 7, 2014, categorically admitted that she had signed the partition deed and was present throughout the registration of the same. Thus, the cause of action for the suit arose on April 7, 1979 itself whereas the suit was filed on March 7, 2013 and is, thus, palpably time-barred.

21. The plaint, particularly in Paragraph Nos. 49 to 51, alleges that the partition deed of 1979 was fraudulently obtained. However, the pivot of the allegations are that Narayan, one of the parties thereto, was defrauded, without however disclosing any particulars or specific details of such fraud and/or as to how such fraud was perpetrated, as mandated under Order VI Rule 4 of the Code of Civil Procedure. It was never the plaint case that the deed was void since Lalita‟s share was left out; thus, the evidence in that regard are beyond the pleadings and hence, in any event, cannot be looked into.

32. Moreover, the trial court at Barasat, District - North 24 Parganas does not come within the contemplation of "Mofussil", since the said Court is in close proximity to the metropolis of Kolkata and in modern days, is sufficiently populated by an erudite bar. Hence, the pleadings drafted by counsel of the said Court cannot, by any stretch of imagination, be treated to be "Mofussil pleadings" and taken lightly. Whether the partition deed was void

33. The allegation in the plaint centres around fraud being practised on one of the executants of the partition deed, namely Narayan. In the absence of any pleading as to the particulars of fraud or even the nature of fraud, the suit on such count is barred under Order VI Rule 4 of the Code of Civil Procedure.

34. The allegation as to the deed being void due to omission of Lalita‟s shares was beyond the pleadings and the evidence in support thereof could not be looked into.

35. However, even assuming that such evidence could be looked into, Lalita admittedly died in 1934/1935, long before the execution of the partition deed in 1979. Hence, on the date of execution of the partition deed, her estate had devolved, even if the plaint case is to be believed, on her daughter Kamala, the plaintiff no.1, who claimed not only as the daughter of Lalita but also through Narayan, her husband.