(Smt. Champa Das vs Smt. Latika Das)
2021 Latest Caselaw 5641 Cal

    19
10.11.2021
  sdas/rrc
                             SAT 52 of 2021
                                   with
                             CAN 1 of 2021
                  (Smt. Champa Das Vs. Smt. Latika Das)


                Mr. Tulsidas Roy
                Ms. Bandana Das Mondal
                                     .....For the appellant

                Mr. Sudrashan Ghosh
                                           .....For the respondent

This appeal is directed against the judgment dated

6th February, 2017 and decree dated 3rd March, 2017 in

Title Appeal No. 05 of 2017 passed by the leaned

Additional District & Sessions Judge, Baruipur, South 24

Parganas whereby the appellate court set aside the

judgment dated 6th February, 2017 and preliminary

decree dated 3rd March, 2017 in Title Suit No. 194 of

2011 on the ground of non-joinder of parties. The

appellant/plaintiff had filed a suit for partition with

regard to 'ka' and 'kha' schedule properties. The

appellant/plaintiff contended that the appellant/plaintiff

and the defendant/respondent became co-owners of the

suit property in execution of two sale deeds registered on

12th February, 2002 and 5th April, 2004 respectively.

Since purchase, the properties are in their possession.

The 'ka' schedule property of the plaint comprises of

Dag No. 5069 measuring 23 decimals out of 36 decimals

(Pond), Dag No. 5083 measuring18 decimals (Pond), Dag

No. 5082 measuring 3 decimals out of 6 decimals

(bagan), Dag No. 5084 measuring 19 decimals (danga),

Dag No 5085 measuring 3 decimals (danga), Dag No.

5086 measuring 11 decimals (pond); while 'kha' schedule

of the plaint comprises of Dag No. 5061 measuring more

or less16 decimals out of 68 decimals (bagan).

The defendant/respondent contested the suit, inter

alia, on the ground that all the co-owners in respect of

the Dag Nos. 5069, 5082 and 5061 had not been made

parties in the partition suit. Though the trial court held

that there was jointness in the suit property with other

co-sharers, it proceeded to pass a preliminary decree of

50:50 share in respect of the 'ka' and 'kha' schedule

property on the premise that the co-shares, if any, may

be impleaded as necessary parties at the subsequent

stage of the suit before the final decree. In appeal, the

appellate court set aside the judgment and decree on the

ground that the trial court had erred in holding that the

suit was maintainable without adding the co-sharers as

necessary parties.

Learned counsel appearing for the appellant/plaintiff

argues that the suit properties were fully demarcated and

conveyed to the parties by the erstwhile owners. Hence,

there was no question of adding the co-sharers in Dag

Nos. 5069, 5082 and 5061 for disposal of the suit.

On the other hand, the learned counsel appearing for

the respondent/defendant/caveator argues that both the

courts below came to a finding that there was a jointness

in respect of the suit property comprised in Dag Nos.

5069, 5082 and 5061 and the appellant/plaintiff in

cross-examination had also admitted that he did not

make others parties in the suit. Thus, no interference is

called for.

We have considered the rival submissions of the

parties. The suit was filed for partition in respect of 'ka'

and 'kha' schedule properties. Admittedly, there are co-

owners in Dag Nos. 5069, 5082 in 'ka' schedule property

and Dag No. 5061 in 'kha' schedule property.

It is argued in view of specific demarcation of the

said plots conveyed to the appellant/plaintiff and the

defendant/respondent by the erstwhile owners, other co-

sharers need not be made parties in the suit. We are

unable to accept such contention as there cannot be any

partial partition of a plot of land. Both the courts below

have held that there is jointness in the suit properties

comprised in the aforesaid Dag Nos. Furthermore, the

appellant/plaintiff himself admitted that he had not

added other persons to the suit during his cross-

examination. Hence, the suit for partition was clearly not

maintainable for non-joinder of co-owners of other

portions of land comprised in Dag Nos. 5069, 5082 and

5061.

Thus, we do not find any substantial question of law

arising in the present case so as to admit the appeal.

Accordingly, the appeal is dismissed.

We, however, observe that the dismissal of the appeal

will not debar the appellant/plaintiff from filing the suit

for partition after adding the co-sharers in the aforesaid

Dag Nos. as necessary parties. Learned Counsel for the

appellant/plaintiff submits that his client is unaware of

the names and other particulars of the co-sharers and

the defendant/respondent inspite of knowledge is not

disclosed such particulars. If so, it shall be open to the

appellant/plaintiff to issue notice upon the

defendant/respondent and the latter upon receipt of

such notice shall supply the names and other particulars

of the co-sharers to the appellant/plaintiff for the

purpose of institution of a fresh suit in accordance with

law.

Since the appeal is dismissed, the connected

application being CAN 1 of 2021 is also dismissed.

All parties shall act upon the server copy of this order

duly downloaded from the official website of this Court.

(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)