Calcutta High Court (Appellete Side)
Sristhidhar Aditya & Anr vs Nilima Dutta & Ors on 7 March, 2022
Dl. March 7,
21. 2022
S.A. 71 of 2021
Sristhidhar Aditya & anr.
Vs.
Nilima Dutta & ors.
The appellants are not represented, nor any
accommodation is prayed for. The appellants remained
unrepresented since January 2022. The appellants were given
several opportunities to appear and make their submission on the
question of admission of the appeal. in view of our last order dated
February 9, 2022, we take up the matter to find out whether any
substantial question of law is involved in favour of admission of the
appeal, or not.
The appeal is directed against judgment and decree
dated November 26, 2018 passed by the learned Additional District
Judge at Kalna, Purba Bardhaman, in Title Appeal No. 13 of 2014
thereby affirming the judgment and decree dated July 25, 2014
passed by the learned Civil Judge (Senior Division) at Kalna in
Title Suit No. 19 of 2004.
The plaintiffs/appellants filed a suit for declaration and
partition by metes and bounds and for other reliefs. In the plaint, it
was stated that the suit property previously belonged to one
Durjapada @ Dijwapada and Rajendra having eight annas share
each therein and cadestral survey record of rights (CSROR) was
prepared in their names. On the death of the said Durjapada, his son,
namely, Narayan, inherited the same. Subsequently, a Money
2
Execution Case being No. 513 of 1933 was instituted in connection
with the suit property, in which Rajendra deposited money in the
auction sale, as a result Narayan relinquished his share in plot No.
1100 in favour of the said Rajendra, but on the death of Narayan,
his wife and daughter, being his legal heirs, sold away the said plot
of land in favour of one Biswanath on June 1, 1983, who
subsequently transferred the said plot of land in favour of one
Nilima Dutta on April 30, 2004 by way of a registered deed of sale.
The defendants in their written statement admittedthat
the suit property belonged to Durjapada @ Dijwapada and Rajendra
in equal share, but denied the other allegations made in the plaint.
They stated that the suit was barred by law of limitation and the
same was bad for non-joinder of necessary parties. according to the
defendants, the suit property along with the other property left by
the predecessor in interest of the said Durjapada and Rajendra has
already been partitioned between them having eight annas share
each by way of amicable settlement by which Durjapada obtained
plot no. 1100 and Rajendra obtained plot no. 1090 and the plot no.
1102 was obtained by them having eight annas each therein and
while the legal heirs of the said Durjapada were in possession over
the same, they sole away plot no 1100 and half share in plot no.
1102 in favour of another by way of registered deeds of sale on June
d1, 1983 and July 7, 2004 respectively. The defendants further
stated that presently, the plaintiffs/appellants have no right, title,
interest and possession over the plot no. 1100 and rest eight annas
share in plot no. 1102 but with a view to harass them, the
plaintiffs/appellants filed the suit, which is liable to be dismissed
3
with cost.
On the basis of the aforesaid pleadings certain issues
were framed and the parties adduced their respective evidence -
both oral and documentary.
The trial court dismissed the suit by holding that the
suit was not maintainable.
Being aggrieved, the plaintiffs/appellants filed the
appeal before the lower appellate court. the lower appellats court
found that Sri Shristidhar Aditya and Sri Bansidhar Aditya are still
alive and, as such, no question would arise in obtaining eight annas
share in the said plot of land with the legal heirs of Narayan Aditya,
the predecessor of defendants no. 3 to 5. The lower appellate court
further found that the scheduled plots were belonged to one
Durjapada and Rajendra having eight annas share each therein.
It appears from the evidence on record that the
scheduled property was not partitioned either by decree of the court
or by registered deed of agreement, but according to the
respondents, the scheduled property had already been partitioned
between the predecessor of the plaintiffs/appellants and the
defendants/respondents no. 3 to 5 by way of amicable settlement.
On that basis they were in possession of the same and got their
names recorded in the record of rights. The defendants/respondents
during the trial and in course of argument had admitted that the
appellants had obtained plot no. 1090 and eight annas share in plot
no. 1102. According to them the scheduled property have already
been partitioned by way of amicable settlement and on the strength
of such partition, the parties are in possession of their respective
share in the plot in question and while they were in possession, they
transferred it by way of deed of sale dated August 1, 1987 and July
7, 2004 with full knowledge of the plaintiffs/appellants. Therefore,
the partition of the scheduled property does not arise.
The trial court as well as the lower appellate court in
order to come to a finding examined the evidence on record, both
oral and documentary, and observed that admittedly one Maya,
Annapurna and Chhabi are the three sisters of the
plaintiffs/appellants. As such, they are the necessary party to the
suit since according to the Hindu Succession Act, 1956, they are
also entitled to have share in the property left by their father, that is,
Rajendra, but it is curious enough that the appellants did not
implead them in the instant suit in any of the category, even no
proper explanation has been given in the plaint in question.
Once it appears during the trial that other co-sharers
have been left out, it is the duty of the parties to implead such co-
sharers as they are equally entitled to their respective shares. It
further transpires during the trial that the scheduled property is
bastu land and all the purchasers of plot no. 1100 and half portion of
plot no. 1102 are not the members of such Aditya family. Therefore,
in view of provisions of Section 4 of the Partition Act, 1893, the co-
sharers of those undivided plots have the rights of pre-emption,
when they themselves filed a suit for partition.
The trial court and the lower appellate court have taken
into consideration that Narayan, son of Durjapada relinquishes
right, title and interest in respect of plot no. 1100 on June 1, 1983
by way of a registered deed of sale, but the appellants did not make
any prayer for pre-emption in respect of that plot of land. It is an
admitted position that Biswanath is not a member of Aditya family
and curiously the appellants did not take steps for pre-emption of
plot no. 1100 and by reason of the intervention of laws of limitation,
the said right extinguishes on the date of filing of the suit.
On such consideration, we do not find any substantial
question of law involved in this appeal.
The second appeal is, therefore, summarily dismissed
under Order XLI Rule 11 of the Code of Civil Procedure.
There will be no order as to costs.
( Soumen Sen, J. )
( Ajoy Kumar Mukherjee, J. )
dns
