Calcutta High Court (Appellete Side)
Bijit Behari Shaw vs Kalpana Shaw & Ors on 15 December, 2021
15.12.2021
Ct. No.21
05,249&250
ab
C.O. 2070 of 2021
Bijit Behari Shaw
-VS-
Kalpana Shaw & Ors.
With
C.O. 2049 of 2021
Smt. Kalpana Shaw & Ors.
-VS-
Bijon Behari Shaw & Ors.
With
C.O. 2431 of 2009
Brojo Behari Shaw
-VS-
Smt. Kalpana Shaw & Ors.
Mr. Debnath Ganguly,
Mr. Supriya Dutta,
Ms. Aishwarya Pratihar,
...for the Petitioner Kalpana Shaw & Ors.
Mr. Souradipta Banerjee,
Ms. Fatima Hassan,
Ms. Dayamanti Kundu,
...for the Opposite party Bijon, Bijit & Ors.
2
By filling C.O. 2049 of 2021 the plaintiffs/petitioners
have prayed for expeditious disposal of Title Suit No. 1415
of 2008 pending before the learned Judge, 2nd Bench, City
Civil Court at Calcutta and where they have prayed for
partition of premises no. 122/B, Manicktala Street and for
declaration of deed dated 04.09.1943 to be illegal and void.
I shall be dealing with this revisional application in the later
part of this order.
By filling C.O. No. 2070 of 2021 the substituted
defendant Bijit Behari Shaw has challenged the order of
substitution under Order 22 Rule 4 Civil Procedure Code
dated 20.07.2021, passed by the learned Judge, 2nd Bench,
City Civil Court at Calcutta, in Title Suit No. 1228 of 2019
filed by the plaintiffs/opposite parties no. 1 to 3 for
declaration, for partition and for consequential relief in
respect of premises no. 124/2A, Manicktala Street,
comprising 3 Cottahs and 8 Chittaks land.
At the time of hearing of the above two revisions, learned
Advocates for both sides have requested this Court for
requisition of the record of another C.O. being No. 2431 of
2009 arising out of Title Suit No. 1415 of 2008 pending
before the another co-ordinate bench and where Brojo
Behari Shaw (since deceased) had challenged the order of
rejection of his application under Order 7 Rule 11 of Civil
Procedure Code dated 06.06.2009.
Gone through the record of Title Suit No. 1228/ 2019
where impugned has been passed by the learned lower
court and it appears the said suit has been filed by Smt.
3
Kalpana Shaw and her two children against Brojo Behari
Shaw for declaration, permanent injunction, partition and
accounts in respect of property measuring 3 Cottah and 8
Chittaks appertaining to holding no. 124/2A, Manicktala
Street. That sole defendant Brojo Behari having died
intestate on 06.10.2019, leaving behind widow wife and a
son, the present petitioner as his legal heirs, the plaintiffs
have prayed for their substitution by filing petition under
Order 22 Rule 4 Civil Procedure Code. Since the suit is for
partition and as such each and every co-sharers are
required to be brought on record, but it is the contention of
the petitioner the property in question belongs to the deities
and he being the sole trustee of the deities there is no need
to implead his mother as a defendant. Therefore, by filing
the present revisional application he has challenged the
order of substitution.
Whether the present petitioner is the sole trustee of the
deities or not need to be decided in view of the averments
made in the pleadings of the parties in the pending Title
Suit No.1415 of 2008 and in Title Suit No.1228 of 2019 and
which I shall be discussing hereunder.
From the records of the above mentioned C.O.s and the
material therein, it is seen Banku Behari Shaw,the
predecessor in-interest of parties to the above revisional
applications was the owner of the property involved in both
the Title Suits mentioned above. He during his life time had
executed a registered will on 24.11.1925 and dedicated the
front side of property appertaining to holding no. 122 in
favour of Thakurs Sree Sree iswar Binode Behari and Sree
4
Binodeshwar Mahadev and back portion he bequeathed in
favour of his four sons namely Bono Behari, Bipin Behari,
Pulin Behari and Bijoy Krishna with condition that said
portion will use and occupy by them but no power to
transfer in any form without making amicable partition
among themselves. The said testator died on 24.05.1927
and will was probated in the year 1927. in the meantime
the holding number 122 was divided into two and
renumbered the front portion dedicated to deities as 122/A
and the retained back portion as 122/B.
There was partition among the four sons of original
owner Banku Behari in respect of back portion of property
appertaining to holding no. 122/B and in such partition
Bono Behari got the holding no. 122/B. Bono Behari had
five sons and he made gift of holding no. 122/B only in
favour of his four sons namely Bijon, Bangshi, Bimal and
Birnich vide registered deed dated 1943 and thereby
excluded his eldest son Bipin Behari, the predecessor of the
contesting present petitioners and respondents. So, here a
question arise how the legal heirs of Biman Behari can
claim interest in the property appertaining to holding no.
122/B and how they can claim share in the rent collected
from the property appertaining to holding no. 122/A,
Manicktala Road, which is dedicated to the deities. No clear
picture has come on record how the legal heirs of Bipin has
come into possession of holding no.124/2A.
Be that as it may, Smt. Kalpana Shaw & Ors. have
alleged that they have acquired interest in the disputed
properties by virtue of inheritance along with other whom
they have arrayed as defendants in those two cases, from
common predecessor in interest. It is settled principal of law
in a partition suit all the co-owners/co-sharers have to
brought on record and the entire joint properties of the co-
owners and co-shares into the common hotchpotch for
partition by metes and bounds.
Therefore, this court hold that learned Court below has
rightly exercised its jurisdiction and allowed the
substitution application by bringing on record the two legal
heirs of sole defendant Brojo Behari who had died intestate.
Substituting the wife of deceased Brojo Behari and mother
of the petitioner as defendant in Title Suit No.1228/2019 is
not likely to prejudice the interest of the present petitioner.
Rather this court too is of view she is a necessary party
being a co-sharer in a suit for partition. This Court does not
find any illegality or material irregularities in the impugned
order.
However, in view of the discussions and findings made
above this Court holds Title Suit No. 1415 of 2008 and Title
Suit No.1228 of 2019 need to be hard analogously for
proper determination of the dispute and to come to the right
findings.
The plaintiff by filling C.O. No.2049 of 2021 has prayed
for expeditious of disposal of Title Suit No. 1415 of 2008.
Accordingly C.O. No. 2049 of 2021 is allowed and C.O.
No. 2070 of 2021 is dismissed along with connected
applications.
Interim orders, if any, shall stand discharged.
Learned Judge, 2nd Bench, City Civil Court at Calcutta,
is hereby requested not only to hear both Title Suit No.
1415 of 2008 and Title Suit No. 1228 of 2019, analogously
but also to dispose of both the Suits at the earliest in an
any event within a period of one year from the date of the
communication of this order and restraining itself from
granting unnecessary adjournments to the parties without
any reasonable ground. The learned Court below should not
be influenced by the observation made above while
disposing the above mentioned Title Suits. Learned Court
below is to decide both the suits on the basis of oral and
documentary evidence that will be produced by the parties
at the time of trial.
In view of the order made above affidavits are not
invited. Allegations made shall be deemed be denied.
There will be no order as to costs.
Let the record of C.O. No. 2431 of 2009 be
returned to the concerned Court from where it was
requisitioned. Let the record be placed before the
appropriate Bench for disposal.
All parties shall act in terms of the copy of the order
downloaded from the official website of this Court.
Urgent Xerox certified photocopies of this judgment, if
applied for be given to the parties upon compliance of the
requisite formalities.
(Kesang Doma Bhutia, J.)
