Smt. Bedana Ghosh Dastidar & Ors vs Smt. Anjali Sinha & Anr
2022 Latest Caselaw 3099 Cal

                            In the High Court at Calcutta
                             Civil Appellate Jurisdiction
                                    Appellate Side

      Present:

      The Hon'ble Justice Subhasis Dasgupta.


                                  S.A. 317 of 2005

                      Smt. Bedana Ghosh Dastidar & Ors.
                                     Vs.
                           Smt. Anjali Sinha & Anr.


      For the appellants/       : Mr. Anit Kumar Rakshit, Adv.
      defendants

      For the respondents/      : Mr. Sudipto Maitra, Ld. Sr. Adv.

      Plaintiffs                  Mr. Amlan Kumar Mukherjee, Adv.

      Heard On                  : 04.03.2022, 01.03.2022, 25.02.2022.

      For Judgment              : 08.06.2022.


Subhasis Dasgupta, J:-

The Second Appeal is directed against the judgment and decree, dated

28th November, 2000, passed by Learned Additional District Judge, 1st

Court, Hooghly in Title Appeal No. 167 of 1993, affirming the judgment of

the Trial Court, passed by Learned Assistant District Judge, 2nd Court,

Hooghly in Title Suit No. 88 of 1985.

Trial Court in partition suit (T.S. No. 88 of 1985) filed by the

plaintiffs/respondents granted preliminary decree upon declaring 50 annas

share of the respondents/plaintiffs in respect of the suit property,

mentioned in the schedule to the plaint.

As per schedule mentioned in the plaint, there is a house in suit

property involving plot nos. 1525 and 1526 within Mouza- Baidyabati,

appertaining to Khatian No. 524, measuring a total area of 12 Cottah, 4

Chatak house property.

In order to perfectly address the issues, raised in this Second Appeal,

a reference to some of the significant facts may be of highest relevance. The

case of the appellants is that they were inducted as tenants in respect of the

suit house, standing in the schedule property, by both the brothers namely,

Tarapada Ghosh and Gangadhar Ghosh, being erstwhile owners, at a rental

of Rs. 30/- per month.

Admittedly, Tarapada and Gangadhar are the erstwhile owners of the

suit property, having equal share each. By a deed dated 23rd July, 1883,

Tarapada transferred his 8 annas shares in respect of the suit property,

mentioned in the schedule to the plaint, to appellants/defendants. Upon

being approached by appellants, Gangadhar, the other brother of Tarapada,

too disclosed his intention to transfer his 8 annas share in respect of the

suit property to appellants/defendants.

Ultimately, appellants/defendants to their utter surprise could

discover that though Gangadhar caused delay in transferring his 8 annas

share in suit property to appellants/defendants, but he ultimately had

transferred his 8 annas share to plaintiffs by deeds dated 17th August, 1984.

The further case of the appellants/defendants is that those two deeds

of respondents/plaintiffs had been collusively prepared, and as such not

binding upon the appellants/defendants. Appellants/defendants to

challenge the claim for partition, instituted by the respondents/plaintiffs,

filed written statement denying material averments contained in plaint so as

to frustrate the claim for partition.

Since, appellants/defendants had acquired right, title, interest to the

extent of 8 annas share in suit property, they proceeded to file two pre-

emption cases being Misc. Case No. 100 of 1986 and Misc. Case No. 101 of

1986 against respondents/plaintiffs to enforce their right of pre-emption, as

against the property, stated to have been purchased by the plaintiffs on the

strength of two deeds dated 17th August, 1984, executed by Gangadhar

Ghosh, being the brother of Tarapada Ghosh.

The defence set up in the written statements, filed by the appellants is

that, since appellants were inducted as tenants in respect of the entire suit

building, and since appellants were in exclusive possession of the entire

building, the right of partition would not be available in the given facts

situation, without evicting the appellants under due process of law from the

suit premises.

The Trial Court upon consideration of the pleadings, framed as many

as four (4) issues, mentioned as hereunder:

"1. Is the suit maintainable in its present form?

2. Have the plaintiffs alleged share in the suit property?

3. Are the plaintiffs entitled to decree as prayed for?

4. To what other relief, if any, are the plaintiffs entitled?"

The preliminary decree granted by the Trial Court was challenged in

appeal vide. Title Appeal No. 167 of 1993 of learned Additional District

Judge, 1st Court, Hooghly. The 1st Lower Appellate Court affirmed the

judgment of the Trial Court.

In the Second Appeal preferred by the appellants/defendants,

following substantial questions of law were framed:

"I. The appellants having taken specific plea that they are the tenants in respect of the entire suit property, whether the Learned Courts below were justified in passing a direction upon the Partition Commissioner to effect partition of the suit property by metes and bounds with due regard to the respective possession of the said parties.

II. The appellants in this case having taken a specific plea that they were in possession of the property as tenants in respect of the entire property, whether the Learned Courts below committed substantial error of law in not deciding that question while deciding suit for partition."

Upon referring such factual backgrounds, Mr. Rakshit appearing for

the appellants submitted that respondents/plaintiffs ought to have

instituted an eviction suit against the appellants/defendants prior to

enforcing their claim for partition. While making elaboration of such issue,

Mr. Rakshit submitted that partition suit instituted had been

inconsequential, unless defendants were evicted, upon due adherence to the

provisions of law.

Appellants/defendants having been given possession in respect of the

entire building, standing in the suit property, the respondents could not be

allowed to claim co-ownership in respect of the remaining 8 annas share of

the suit property, previously held by Gangadhar Ghosh, the brother of

Tarapada Ghosh.

The sum and substance of the argument thus raised by Mr. Rakshit is

thus directed to reveal that the institution of partition suit was bad in law,

as the claim for partition could not be enforced in respect of the suit

property, without evicting the appellants/defendants, who were admittedly

tenants in respect of the entire suit building standing in the suit property,

after being inducted by Tarapada Ghosh and Gangadhar Ghosh, long before

the purchase of the property by respondents/plaintiffs.

Disputing with the judgment of 1st Lower Appellate against the

affirmance of judgment of Trial Court, Mr. Rakshit strenuously argued that

the obligation cast upon the 1st Lower Appellate Court could not be duly

discharged specifically by going into the question of possession of the suit

property, which was sought to be demarcated by metes and bounds with a

structure thereon; the possession of which was admittedly under

appellants/defendants, since the date of their induction as tenants in

respect of such building.

Reliance was placed by Mr. Rakshit on a decision reported in (2001) 3

SCC 179 delivered in the of Santosh Hazari Vs. Purushottam Tiwari

(deceased) by LRS, wherein the duties and obligations cast upon the First

Lower Appellate Court, while affirming or reversing the judgment of the Trial

Court, has been specifically delineated, and being emboldened by such

decision, Mr. Rakshit submitted that the 1st Lower Appellate Court in due

discharge of its obligation did not strictly adhere to such proposition of law,

and obviously rendered decision, being a device or camouflage adopted by

the appellate court for shirking the duty cast on it.

Mr. Rakshit further submitted that even after becoming the owners in

respect of the suit property to the extent of 8 annas share, the

appellants/defendants even proceeded to deposit proportionate half rent to

the vendor of the respondents/plaintiffs, and such fact even could not be

critically considered by the court below, while granting partition decree in

preliminary form upon declaring 8 annas share of the suit property of

plaintiffs in respect of the suit property.

Mr. Maitra, learned senior advocate for the respondents/plaintiffs

taking recourse to the averments made in the written statement filed by the

appellants/defendants, submitted that averments made in the written

statement would not automatically become proof of evidence, unless some

cogent and convincing evidence are produced during the trial by the

appellants/defendants, revealing deposit of proportionate half rent to the

vendor of the respondents, after appellants/defendants had become owner

to the extent of half share of the suit property on the strength of deed dated

23rd July, 1983 from Tarapada Ghosh. The claim of deposit of proportionate

half rent to vendor of plaintiffs/respondents, not being supported by

evidence, would become inconsequential, Mr. Maitra argued.

Mr. Maitra, thus persuaded to establish that defence set up in the

written statement unless proved, would be without any consequence. It was

incidentally contended by Mr. Maitra that no notice of attornment was

issued at the instance of appellants/defendants after their purchase to the

extent of half share in respect of the suit property.

The definite case of the respondents/plaintiffs, as presented by Mr.

Maitra, is that possession of appellants in respect of the suit property was

not in dispute. Since partition is a right incidental to ownership of the

property, and by reason of purchase of 8 annas share of the suit property

from Gangadhar Ghosh, as per his available share in the suit property, the

respondents automatically became co-owners of the suit property, so as to

advance their claim for partition to the extent of their share, they held in

respect of the suit property, and such claim of partition cannot be resisted

merely upon the claim of pre-emption case being filed by

appellants/defendants, who were admittedly strangers in respect of the

dwelling house owned and possessed by the erstwhile owners of suit

property, Mr. Maitra contended.

Reliance was placed by Mr. Maitra on a decision reported in AIR 1954

SC 575 (Vol.41, CN 132), delivered in the case of Chhote Khan & Ors. Vs.

Mal Khan & Ors., wherein it was observed that partition is a right incident

to the ownership of property and once the defendants are held, as co-owner

their right to partition cannot be resisted.

As per submission disclosed by Mr. Maitra, none of the parties to this

suit were members of an undivided family in respect of the dwelling house

standing in the suit property, over which appellants/defendants had

asserted their tenancy right to the extent of his 8 annas share in the suit

property, thereby admitting remaining 8 annas share of

respondents/plaintiffs in suit property.

Reliance was further placed by Mr. Maitra on a decision reported in

AIR 1984 Calcutta 397, delivered in the case of Dhirendra Nath

Sadhukhan Vs. Tinkari Sadhukhan & Ors., wherein the concept of

family in terms of the provisions of Section 4 of Partition Act, as regards

dwelling house, was emphasised.

Upon referring such decision, Mr. Maitra, endeavoured to establish

that none of the parties to the instant litigation was member of an undivided

family in respect of a dwelling house. There was, thus, nothing to reveal a

common bond or cementing factor bringing both the parties within the fold

of an undivided family.

While challenging the points, raised by Mr. Rakshit in this appeal as

referred hereinabove, Mr. Maitra put much emphasis that as per evidence

adduced in this case, the status of the appellants/defendants in respect of

the suit property was nothing more than a licensee or caretaker, far to speak

off tenants. The appellants/defendants were obliged to prove the claim of

tenancy not only merely by production of some rent receipts, but by

producing their landlord, or any other person acquainted with the landlord,

without which the claim of tenancy right would not be automatically

established so as to frustrate the claim for partition.

The main thrust of this appeal is found rested upon the claim of pre-

emption, which was sought to be established showing the pendency of the

pre-emption cases, filed by the appellants/defendants against the

plaintiffs/respondents in assertion of their claim for pre-emption in respect

of the 8 annas share of suit property being purchased by

respondents/plaintiffs.

According to Mr. Maitra, a pre-emptee could not be a tenant and vice-

versa, and as such one stand extinguished the other stand. Mr. Maitra,

putting much stress strongly argued that the plea of pre-emption set up in

written statement was misnomer in a suit for partition, being inconsistent

with the plea based on tenancy right in respect of the suit property, wherein

the share of respondents/plaintiffs to the extent of 8 annas share was not

disputed one.

As regards the inconsistent plea set up in the written statement, filed

by the appellants/defendants, with regard to the claim for tenancy in

respect of the suit property vis-à-vis, the ownership right over the same, Mr.

Maitra relied upon a decision reported in 46 CWN 904, delivered in the case

of Debendra Nath Biswas & Anr. Vs. Umesh Chandra Mondal & Ors., to

establish that by operation of law, the claim of tenancy would automatically

stand extinguished, whenever claim for pre-emption was advanced by

appellants/defendants to pre-empt 8 annas share of plaintiffs/respondents.

According to Mr. Maitra, to enforce the claim for partition,

respondents were not obliged to first invite an eviction suit, when the claim

of tenancy of appellants was a disputed one, and merely by reason of claim

of possession of appellants/defendants in respect of the entire suit building,

standing over the suit property, the preliminary decree cannot be resisted,

already granted in this case.

Disputing with the applicability of decision, as sought to be made

applicable over the facts and circumstances of this case by Mr. Rakshit, a

reference to Paragraph-15 of the said judgment was brought to the notice of

the Court by Mr. Maitra so as to distinguish the judgment being relied upon

by Mr. Rakshit in the present situation of this case.

It was, thus, sincerely endeavoured to establish by Mr. Maitra that the

First Lower Appellate Court, while agreeing with the view of the Trial Court,

upon due consideration of evidence adduced by the opposite parties to this

case, which was not a product of self-contradiction, was not obliged to re-

state the effect of the evidence or reiterate the reasons given by the Trial

Court.

As the impugned judgment was sufficient to reveal that the First

Lower Appellate Court before rendering decision against the judgment of the

Trial Court, formulated two (2) points, which may be mentioned as

hereunder:

"1. Whether the plaintiffs and defendants are co-sharer of the suit property?

2. Whether the Learned Court below is justified in decreeing the suit in preliminary form and whether the Judgement of the Learned Court below can be sustained or not?"

Such formulation of points, followed by discussion made thereunder

was quite sufficient to reveal the application of mind at least by the First

Lower Appellate Court.

In the given circumstances of this case, Mr. Maitra contended that the

detailed discussion of the judgment of the First Lower Appellate Court was

sufficient to reveal that factual basis for his decision was rightly considered

and in any case, it could not be treated to be device or camouflage adopted

by the Appellate Court for shirking the duty cast on it.

Mr. Maitra lastly submitted that though it was the main defence of the

appellants/defendants that they had filed pre-emption cases against the

plaintiffs/respondents to enforce their right of the pre-emption, as against

the purchased property of the respondents/plaintiffs, but ultimately the

court below had already delivered decision, dismissing two Misc. cases

referred above, and till date no appal could be preferred against the

dismissal of the Misc. cases.

The undenying position is that the suit property with a standing

house thereon, originally belonged to two brothers namely, Tarapada and

Gangadhar, having 8 annas share each.

Respondents/plaintiffs purchased Gangadhar's 8 annas share in suit

property by sale deed dated 17.08.1984, while appellants/defendants

became owner of remaining 8 annas share of the suit property upon

purchase from Tarapada's share by deed dated 23.07.1983.

The scheme of the evidence, adduced by the either of the parties to

this case has led to an irresistible conclusion that plaintiffs/respondents are

the co-owners of the suit property on their purchase. It is not at all denied

by the appellants, that plaintiffs/respondents are the owners to the extent of

8 annas share in suit property. There is a house standing in the suit

property, measuring an area of 12 Cottah, 4 Chatak of land, as specifically

disclosed in the plaint, appertaining to Plot Nos. 1525 and 1526 under

Khatian No. 524 of Mouza- Baidyabati, P.S.- Serampore in the district of

Hooghly.

The appellants' plea set up in the written statement was that they are

tenants in respect of the entire suit property, and they were inducted by the

erstwhile owners of the suit property namely, Tarapada and Gangadhar.

Admittedly, respondents/plaintiffs are not in physical possession of the suit

property. The status of appellants/defendants was described to be a

licensee-cum-caretaker of the suit property, but respondents/plaintiffs were

not prepared to accept appellants/defendants to be tenants in respect to the

suit property.

As appellants/defendants had become owner of 8 annas share in

respect of the suit property upon purchase from Tarapada's share, they

proceeded to initiate two different pre-emption cases before competent

authority to pre-empt the property, purchased by respondents/plaintiffs

being 8 annas share of Gangadhar in suit property. Both the pre-emption

cases, with the passage of time ultimately ended in dismissal. No appeal

thereafter could be filed challenging the dismissal of pre-emption cases.

Though argument was advanced by appellants that preliminary decree

granted in the instant partition suit could not be given effect to, unless

appellants are evicted upon adhering to due process of law, but no separate

suit has been instituted at the instance of appellants/defendants seeking a

declaration of their tenancy right to the extent of their 8 annas share in

respect of the suit property.

In course of argument advanced by the appellants, it was disclosed

that even after becoming owner to the extent of 8 annas share in respect of

the suit property, the appellants/defendants continued to deposit

proportionate half rent to vendor of respondents/plaintiffs, but no cogent

evidence could be adduced during the trial in support of such stand,

without which it is very difficult to accept such submission of appellants as

regards deposit of proportionate rent for the tenancy being held by

appellants in respect of the suit property.

Without any controversy, parties to this case are not members of a

dwelling house situated in the suit property belonging to an undivided

family. Both the parties are, however, strangers to the suit property having

no common bond or cementing factor, bringing both the parties within the

fold of an undivided family.

Therefore, there is hardly any chance of application of the provisions

available under Section 4 of the Partition Act, 1893. Since, respondents

became owner of suit property to the extent of 8 annas share upon purchase

from one of the co-owners of suit property, partition being an incident of

ownership of property, the suit for partition, like the instant one, was filed

simply to enforce a partition taking resort to the provisions available under

Section 44 of Transfer of Property Act, 1882.

Though, much argument was made by appellants that the Appellate

Court did not duly discharge its function, while affirming the decision of the

Trial Court, by going into question of possession, admittedly under

appellants, and taking into account the tenancy of appellants, but the 1st

Lower Appellate Court, while agreeing with the view of the Trial Court upon

due consideration of the evidence, which is not product of self-contradiction,

was not obliged to re-state the effect of evidence or reiterate the reasons,

given by Trial Court. The discussion given by the 1st Lower Appellate Court

having made in terms of formulation of points, mentioned in the judgment

impugned, is sufficient to reveal conscious application of mind of 1st Lower

Appellate Court, while affirming the decision of Trial Court.

The dispute surfaced with regard to possession of the suit property,

the 1st Lower Appellate Court has subscribed its independent findings

pertaining to the question of possession of suit property, at least for the

determination of share, while granting decree in preliminary form for a

partition suit. Such findings of possession, reached by 1st Lower Appellate

Court would remain undisturbed.

It is a case, wherein appellants in one go proceeded to set up a plea,

as owner of suit property to the extent of 8 annas share therein, and to

enforce their claim of ownership filed pre-emption cases against

respondents/plaintiffs to pre-empt the land being purchased by

respondents/plaintiffs simultaneous with raising a plea of tenancy right in

respect of self-same house for the remaining 8 annas share in the suit

property, which is perceived to be inconsistent with one another, and setting

up of such stand would invariably extinguish the other stand, as both

cannot go together, what has been rightly proposed by Mr. Maitra.

The plea of having claimed ownership to the extent of 8 annas share

in respect of the suit property giving rise to institution of pre-emption cases

for the purpose of pre-empting the land, purchased by respondents, would

thus surely weaken the plea of tenancy right in respect of the self-same suit

property. That being the position, to enforce claim for partition,

respondents/plaintiffs were not obliged to invite an eviction suit against the

appellants/defendants, and then to claim for partition in respect of the suit

property to the extent of 8 annas share, they held in the suit property, upon

purchase.

The preliminary decree granted in this case, thus cannot be doubted

or frustrated taking the plea of proportionate half tenancy right in respect of

the suit property, and together with a further plea of institution of pre-

emption cases to enforce claim of pre-emption, as against purchase of

remaining 8 annas share in suit property by respondents/plaintiffs,

particularly in a case of this nature, where 8 annas share of

respondents/plaintiffs is not at all denied by appellants/defendants.

Both the substantial questions of law are accordingly answered by the

discussions made hereinabove.

The Second Appeal fails. Accordingly, the appeal along with its

connected applications, if there be any, stand disposed of.

Office is directed to return the lower court records to the concerned

court below.

Urgent certified copy of this judgment and order, if applied for, be

given to the appearing parties as expeditiously as possible upon compliance

with the all necessary formalities.

(Subhasis Dasgupta, J.)