Bablu Biswas vs Amal Mondal & Ors
2022 Latest Caselaw 6327 Cal

                                               SAT 532 of 2016
Item-5.   07-09-2022                CAN 1 of 2016 (old CAN 11629 of 2016)
                                               CAN 2 of 2022
                                               CAN 3 of 2022
  sg        Ct. 8                              CAN 4 of 2022

                                                Bablu Biswas
                                                   Versus
                                              Amal Mondal & Ors.


                               Mr. Soumyadeep Biswas, Adv.
                                                        ...for the appellant


                               Affidavit of service filed in Court today is kept with the

                       record.

                               In spite of service upon the respondents, the said

respondents are not represented nor any accommodation is made

on their behalf.

The matter appeared in the list yesterday when none had

appeared on behalf of the respondents.

In Re: CAN 2 of 2022:

Sufficient cause being shown for not being able to represent

on 10th December, 2020 when the appeal and the stay application

were dismissed for default, the order dated 10th December, 2020 is

recalled and the appeal and the application, being CAN 1 of 2016

(old CAN 11629 of 2016) are restored to its original number and

file.

CAN 2 of 2022 is, accordingly, disposed of.

In Re: CAN 3 of 2022:

Sufficient cause being shown for not being able to file the

restoration application being CAN 2 of 2022 within the period of

limitation, we allow this application for condonation of delay in

filing the restoration application.

CAN 3 of 2022 is, thus, disposed of.

In Re: CAN 4 of 2022

This is an application for substitution of the legal heirs and

representatives of 2Ka and 3d, who died intestate during the

pendency of the proceeding. The petitioner has stated in the

petition that they become aware of the death of the said

respondent on 22nd July, 2022 for the first time. The proposed

substituted legal hairs are all major, sui juries and sound mind.

It is also stated in the petition that the respondent nos. 4Gha

and 13Ka have also died during the pendency of the appeal and

the legal heirs and representatives of the said deceased

respondents are already on record as respondent nos. 4Ka, 4Kha,

4Ga and 4Unga are the legal heirs and representatives of the

deceased respondent no.4Gha and respondent nos. 13Kha, 13Ga

and 13Gha are the legal heirs and representatives of the deceased

respondent no.13Ka.

Accordingly, we allow the prayer for substitution. CAN 4 of

2022 is, thus, disposed of.

Leave is given to the petitioner to correct the prayer portion

in course of the day.

The department shall carry out necessary amendments in the

memorandum of appeal and the connected applications by

deleting the names of the respondent nos. 2Ka and 3d from the

cause title and in place and instead of the said respondents, the

proposed substituted respondents shall be added as the full

addresses of the proposed substituted respondents are mentioned

in paragraphs 16 and 18 of the petition and by expunging the

names of the respondent nos. 4Ga and 4Unha from the appeal and

the applications.

With the above direction, the application for substitution

being CAN 4 of 2022 is disposed of.

In Re: SAT 532 of 2016

The second appeal has come up for admission. The second

appeal is directed against a judgment and decree dated 15th July,

2016 passed by the learned Additional District Judge, 3 rd Court,

Nadia at Krishnagar by affirming the judgment dated 26th

September, 2012 passed by the learned Civil Judge (Senior

Division), 2nd Court, Krishnagar, in Title Suit no. 19 of 2001 in

connection with an application under Section 4 of the Partition

Act.

The said matter was taken up along with the final decree

proceeding. The application under Section 4 was filed during the

course of the final decree proceeding and hence, both the matters

were heard together and disposed of by the learned Trial Judge on

26th September, 2012.

The learned Counsel appearing for the appellant has

submitted that the learned Trial Judge has completely

misconstrued the scope, purport and meaning of Section 4 of the

Partition Act. He has submitted that the premise on which his right

to claim share in the dwelling house of the ancestral property has

been rejected by both the courts was wrong.

The leaned Counsel has relied upon two decisions of the

Division Bench of our Court, namely, (i) in the matter of Manick

Lal Singh vs. Gouri Shankar Shah, reported in 1968 0 AIR(Cal)

245 and (ii) in the case of Sunil Kumar Mukhopadhyay vs.

Provash Chandra Majumdar reported in 1969 0 AIR(Cal) 88 and

impressed upon this Court that the land appurtenant to the

dwelling house should also be construed as part of the dwelling

house within the scope and meaning of Section 4 of the Partition

Act.

The learned Trial Court has arrived at a conclusion on the

basis of the evidence adduced that the appellant, having failed to

establish that the property sought to be partitioned is a dwelling

house, is not entitled to the said relief. The learned Trial Judge, on

the basis of the evidence, arrived at a finding that from the oral

evidences of the PW-2 and DW-2, it is clearly established that the

defendant since the date of his purchasing has been residing in the

suit property and exercising all overt acts regarding his possession

therein. It was further recorded that the defendant no.1 has already

exercised his right of possession by way of actually residing

therein. The property lost its character as dwelling house and on

such ground, the learned Trial Judge declined to grant relief to the

plaintiff.

The First Appellate Court has noted that the appellant filed a

suit for partition of the property in which some of the co-sharers

have already transferred their share in favour of the

stranger/purchaser.

The evidence on record would show that the defendant is

possessing a part of the suit property. This has been admitted by

PW-2 during the cross-examination. It also transpired during the

trial that the stranger/purchaser has purchased not the dwelling

house but a vacant land adjoining to the road which is clear from

the two sale deeds being Exhibit-A and Exhibit-B.

The learned Trial Judge has relied upon the decision of the

Hon'ble Supreme Court in the case of Goutam Paul vs. Debi

Rani Paul, reported in 2001 WBLR Supreme Court page 135,

where the Hon'ble Supreme Court has clearly stated that when a

share of dwelling house where the family resides is transferred to

stranger/purchaser, the principle of Section 4 is applied in a case

where it does not relate to the share in a dwelling house, the

provision of the said Act would not apply. In fact, the judgment

cited by the learned Counsel appearing on behalf of the appellant

while acknowledging that 'dwelling house' may have an extensive

meaning but it has to be assessed contextually. There has to be an

evidence to show that the vacant land was necessary for the

convenient occupation of the dwelling house. Admittedly, there is

no evidence on record to show that the appellant adduced any

evidence - oral or documentary - to show that the vacant land

purchased by the stranger/purchaser was necessary for the

convenient occupation of the house, which is claimed to be a

dwelling house.

In the absence of any such evidence, it cannot be said that

the trial court or the appellate court has committed any error,

which requires to be interfered with at the admission stage of a

second appeal, as the second appeal can only be admitted if it

involves substantial question of law.

On such consideration, the second appeal fails. However,

there shall be no order as to costs.

In Re: CAN 1 of 2016 (old CAN 11629 of 2016)

In view of dismissal of the second appeal, the application for

stay being CAN 1 of 2016 (old CAN 11629 of 2016) is also

dismissed.

(Uday Kumar, J.)                              (Soumen Sen, J.)