Calcutta High Court (Appellete Side)
Ananda Kumar Khan &Ors vs Joydeb Chandra Khan &Ors on 9 August, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: THE HON'BLE JUSTICE RAJASEKHAR MANTHA
&
THE HON'BLE JUSTICE SUPRATIM BHATTACHARYA
FA 189 of 2013
Ananda Kumar Khan &Ors.
-Versus-
Joydeb Chandra Khan &Ors.
Appearance:
For the Appellants :Mr. Gopal Chandra Ghosh, Adv.
For the Respondents :Mr. ParthaPratim Roy, Adv.
Mr. Sarbananda Sanyal, Adv.
Ms. Poulami Chakraborty, Adv.
Hearing concluded on : 02.08.2023
Judgment On : 09.08.2023
Rajasekhar Mantha J.
1. The appeal is directed against the judgment and order dated
19.04.2013 passed in Title Suit No. 129 of 2005 Ananda Kumar Khan &
Ors. v. Jaydeb Chandra Khan & Ors. The suit was for partition and
representation.
2. The appellant/plaintiffs are aggrieved that the suit was dismissed,
inter alia, on the ground of non-joinder of parties and that certain
documents were not proved in accordance with law. The Court below was of
the view that the derivation of title in favour of the predecessor-in-interest of
the plaintiffs and defendants, oneKhagendra Nath Khan has not been
effectively proved.
2
FACTS
OF THE CASE
3. The plaintiffs are the children of Sufal Chandra Khan son of
Khagendra Nath Khan and grandchildren of Motilal Khan. The genealogical
table of the family of Khagendra Nath Khan is set out herein below:-
Genealogical Table
4. The following 18 properties have been included in the schedule to the
point in which all parties to the suit may have an interest:-
ITEM MOUJA KHATIA PILOT TOTAL AREA CATEGOR OWNED BY ACQUISITION OF OWNERSHIP
NO. N C.S. C.S. Y
01 BANIBON 243 2188 08 DECIMAL SHALI KHAGENDRA NATH ACQUIRED BY PURCHASE ON
(3484.8sq.ft). KHAN 12/10/1949 FROM WIFE OF
KHEJAMAT ALI KHAN. EXT.5, pg. 18-
19 PART 2
02 BANIBON 604 2199 04 DECIMAL DANGA KHAGENDRA NATH PURCHASED BY KHAGENDRA NATH
OR 1742.4 KHAN KHAN FROM SADHANBALA KHAN
sq.ft. THE ONLY LEGAL HEIR OF
SASHIBHUSAN KHAN BY DEED
DATED 31/03/1968, EXT.2, pg. 7-11,
PART 2.
03 BANIBON 604 2201 02 DECIMAL DANGA PURCHASED BY KHAGENDRA NATH
OR 871.2 KHAGENDRA NATH KHAN FROM SADHANBALA KHAN
sq.ft. KHAN THE ONLY LEGAL HEIR OF
SASHIBHUSAN KHAN BY DEED
DATED 31/03/1968, EXT.2, pg. 7-11,
PART 2.
04 BANIBON 454 2208 23 DECIMAL DOBA (10ana) FROM MOTILAL (6ana)
OR 10018.8 KHAGENDRA NATH FROM BECHURAM KOYAL BY
sq.ft. KHAN PURCHASE.
KHAGENDRA NATH KHAN ON
EXT.11(pg. 36-37, PART 2) & EXT.7
(pg. 24-25, PART 2) EXT. 3,
06/12/1963 (pg. 12-14, PART 2)
05 BANIBON 454 2210 12 DECIMAL BASTU KHAGENDRA PURCHASED BY KHAGENDRA NATH
OR 5227.2 NATH KHAN FROM BECHURAM KOYAL ON
sq.ft. KHAN 06/12/1963, EXT.3, (pg. 14, PART 2)
06 BANIBON 454 2211 02 DECIMAL DANGA KHAGENDRA NATH PURCHASED BY KHAGENDRA NATH
OR 871.2 KHAN KHAN FROM BECHURAM KOYAL ON
sq.ft. 06/12/1963, EXT.3, (pg. 14, PART 2)
07 BANIBON 454 2212 02 DECIMAL DANGA KHAGENDRA PURCHASED BY KHAGENDRA NATH
OR 871.2 NATH KHAN FROM BECHURAM KOYAL ON
sq.ft. KHAN 06/12/1963, EXT.3, (pg. 14, PART 2)
08 BANIBON 454 2209 21 DECIMAL BASTU KHAGENDRA INHERITED FROM FATHER MOTILAL
OR 9147.6 NATH KHAN
sq.ft. KHAN EXT.11, ( pg. 36-37, PART 2)
09 BANIBON 454 2213 16 DECIMAL DANGA KHAGENDRA NATH ADMITTED IN W/S ON 16/12/2006
OR KHAN HAS 7 DECIMAL pg. 21, PART 1.
6969.6sq.ft. & GOPAL CHANDRA
KHAN HAS 9 DECIMAL.
10 BANIBON 454 2214 19 DECIMAL DOBA KHAGENDRA NATH BY PURCHASE FROM SADHANBALA
OR 8276.4 KHAN @ SADHANMOYEE KHAN. EXT. 2,
sq.ft. 31/03/1968, (pg. 7-11, PART 2)
11 BANIBON 454 2215 27 DECIMAL SHALI KHAGENDRA NATH BY PURCHASE FROM SADHANBALA
OR 11761.12 KHAN @ SADHANMOYEE KHAN. EXT. 2,
sq.ft. 31/03/1968, (pg. 7-11, PART 2
12 BANIBON 454 2216 45 DECIMAL DOBA KHAGENDRA NATH INHERITED FROM FATHER MOTILAL
OR 19,602.00 KHAN KHAN
sq.ft. EXT.11, pg. 36-37, PART 2
13 BANIBON 454 2217 11 DECIMAL SHALI KHAGENDRA NATH INHERITED FROM FATHER MOTILAL
OR 4791.6 KHAN KHAN
sq.ft. EXT.11, pg. 36-37, PART 2
14 BANIBON 454 3021 15 DECIMAL DANGA KHAGENDRA NATH INHERITED FROM FATHER MOTILAL
OR 6534 KHAN KHAN
sq.ft. EXT.11, pg. 36-37, PART 2
15 BANIBON 454 3020 21 DECIMAL SHALI SUFAL CH KHAN PURCHASE FROM SADHANBALA @
OR 9147.6 (FATHER OF PLAINTIFF SADHANMOYEE KHAN. EXT. 11,
sq.ft. NO 1 ANANDA KR 13/08/1967, pg. 1-5, PART 2
KHAN) ND
DEFENDANT NO 1
JOYDEB CH KHAN.
(EACH GOT 50%)
16 KANTABERI 861 4131 1 ACR, 11 SHALI KHAGENDRA NATH INHERITED FROM FATHER MOTILAL
A DECIMAL OR KHAN KHAN pg. 20, PART 1, 16/02/2006
48,351.6 (W/S D1)
sq.ft.
17 KANTABERI 860 4225 71 DECIMAL SHALI KHAGENDRA NATH INHERITED FROM FATHER MOTILAL
A OR 30,927.6 KHAN KHAN
sq.ft. pg. 137-139, PART 1
18 KANTABERI 863 4423 1 ACR, 41 SHALI 75 DECIMAL OF INHERITED FROM FATHER MOTILAL
A DECIMAL OR KHAGENDRA NATH KHAN DEFENDANT NO 13, 14, 15
61419.6 sq.ft. KHAN. 66 DECIMAL OF (ANANDA MANNA, RABINDRA
DEFENDANT NO 13, MANNA, NITYANANDA MANNA)
14, 15 (ANANDA PURCHESED FROM KHAGENDRA
MANNA, RABINDRA NATH KHAN'S LEGAL HEIR, AFTER
MANNA, KHAGENDRA NATH KHAN DIED.
NITYANANDA (EXT.19, 2/4/1984 pg. 74-81, PART
MANNA). 2)
5. There are 15 plaintiffs and 11 defendants in the suit. The plaint was
amended once and the Defendant No. 1 has filed 2 additional written
statements.
6. The plaintiffs filed for interrogatories. The defendants clearly did not
answer the same.
ISSUES FRAMED BY THE COURT BELOW
1. Is the suit maintainable in its present form and prayer?
2. Whether the plaintiffs have any cause of action to file this suit?
3. Is the suit barred by limitation?
4. Is the suit bad for defect of parties?
5. Is the suit bad for partial partition?
6. Are the plaintiffs entitled to any relief as sought for?
7. To what other relief/reliefs, plaintiffs are entitled?
7. The defendants did not cite any evidence. All documents produced by
the plaintiffs, including title deeds and Record of Rights, have been received
without objection and exhibited in the Court below.
8. On 22nd December 2009 Defendant no.1 Joydeb Khan declared by
affidavit that there is no need to implead anyone else in the suit as all
necessary parties are available on record.
9. By an order dated 21st March 2011, the Court below found that the
defendants could not effectively answer the interrogatories submitted by the
plaintiff the said defendants were therefore debarred from taking the plea
that the suit was bad for non-joinder of defect of parties.
10. It further appears that an application filed by the plaintiff for an
amendment to the plaint to include certain properties under Order 6 Rule
17 was dismissed by the Court below on 12th September 2006.
11. It also appears that on 26th April 2006, an order of status quo was
passed against the defendants on an allegation by the plaintiff that the
defendants were trying to raise a construction in the suit property and also
cut away valuable trees on the suit and to catch fish from a common tank.
12. This Court has heard detailed arguments of Counsel for the
appellants. The respondents have filed detailed notes of arguments. The
notes have also been carefully considered by this Court.
THIS COURT'S FINDINGS
13. Order 1 Rule (13) provides that any objection as regards non-joinder
or misjoinder of parties must be taken at the earliest stage in the
proceedings. However, a Court could find a suit bad for non-joinder and or
misjoinder even without any objection from the parties. Section 99 however
provides that a higher court must not upset a decree for an error or
irregularity including mis-joinder of parties, not affecting the merits of the
case. The only exception is as regards non-joinder of necessary parties.
Hence the arguments of Ld Counsel for the appellants that, the defendants
have expressly waived their rights as regards the objection to the non-
joinder of parties is irrelevant, and cannot be accepted.
14. This Court however finds that after recording the plaint and defense
case the Court below found that plot no. 2188 being item no. 1 in the
Schedule was originally owned by one Khejamat Ali Khan. He died leaving
behind his wife Amina Bibi she sold the entire property to Khagendra Nath
Khan predecessor-in-interest the common ancestor to plaintiffs and
defendants. Amina was entitled to sell the same under "Shafi-e-Sharik".
15. The other co-sharers of Amina Bibi have not at any point in time
challenged the sale. They have not within a year exercised any right of pre-
emption in respect of the property. The parties, as legal heirs of Khagendra,
are in continuous occupation of the property by a presumption that is
drawn from a document registered more than 40 years ago. Reference in this
regard is made to the decision of the Supreme Court in the case of Prem
Singh v. Birbal reported in (2006) 5 SCC 353. At paragraph 27 it was held
as follows:-
"27. There is a presumption that a registered document is validly
executed. A registered document, therefore, prima facie would be valid
in law. The onus of proof, thus, would be on a person who leads
evidence to rebut the presumption. In the instant case, Respondent 1
has not been able to rebut the said presumption."
16. In Ishwar Dass Jain (Deceased) Thr LRs Vs Sohan Lal reported in
(2000) 1 SCC 434, at paragraph 27 it was held as follows:-
"27. We shall next refer to the vital evidence or facts relating to the
mortgage which have not been considered by the courts below. The
defendant admitted in his evidence as DW 2 that the mortgage deed
was executed by him. The endorsement of the Sub-Registrar shows
that the amount of Rs 1000 was paid as mortgage money. There is a
presumption of the correctness of the endorsement made by the Sub-
Registrar under Section 58 of the Registration Act (vide Baij Nath
Singh v. Jamal Bros. & Co. Ltd. [AIR 1924 PC 48 : 51 IA 18] ); it can
be rebutted only by strong evidence to the contrary."
17. This Court is, therefore, of the view that there was no requirement of
impleading the other legal heirs of Khejamat Ali. Even by applying the
principles of adverse possession, the plaintiffs and defendants could have
claimed title by continuous occupation of the property in question.
18. A Civil Court is not debarred from framing an issue adverse
possession after hearing counsel for the parties; based on the evidence on
record and also based on answers to interrogatories. Order XV Rule 3 of the
CPC mandates as such. The Court ought to have framed an issue as regards
the title of the property of the parties by adverse possession. The learned
Court below, therefore, erred in holding that the property of Khejamat Ali
and the title of Khagendra Nath Khan was defective in respect of the
property purchased from Khejamat Ali and his wife Amina Bibi. The
property in question could have been easily partitioned after determining the
shares of the parties to the suit.
19. In respect of Item no. 9 in the Schedule property i.e. Plot No. 2213,
standing in the name of Khagendra Nath Khan and Gopal Chandra Khan,
the Court below found that the same was wrongly recorded in the C.S.
Record of Right in the name of Sashibhusan Khan. The title deed, however,
stood in the name of Khagendra Nath Khan and Gopal Chandra Khan. It is
now well-settled that a record of rights is only in evidence of possession and
cannot negate any title to any property. In any event, a partition suit is
concerned with the shares of each of the parties to the suit in the property
in question. A partition suit is not a title suit.
20. Apart from that the ownership of Khagendra Nath Khan has been
admitted in the written statement filed on 16th December 2006 at Page 21
Part 1 of the Paper Book. The Court below, therefore, ought not to have
placed much relevance on an incorrect entry in the record of rights. It is not
usual for parties to forget to rectify entries in the ROR of the purchase of
properties. The instant property was purchased in the 1960s and the
plaintiffs and defendants and their predecessors have been in continuous
occupation thereof for more than five decades. The arguments of the
defendants is liable to be rejected applying the dicta in the Prem Chand
case (Supra) and the Ishwar Dass Case (Supra)
21. The 23 decimals of land at Banibon against Item no. 4 was admittedly
standing in the name of Khagendra Nath Khan having purchased it from
Motilal Khan and Bechuram Koyal. The said portion was purchased in the
year 1963. In the event any of the legal heirs of Bechuram Koyal had any
dispute with regard to the purchase they would have definitely objected to
the same in the 55 years since it was sold. The recording of the name of
Sasibhushan in the CSROR is irrelevant and only requires rectification.
Once again applying the principles in the case of Prem Singh Case (Supra)
and Ishwar Dass (Supra) the Court below erred in questioning a document
of the year 1963 after 55 years of its execution.
22. The same error has been committed by the Court below in respect of
Item no. 7 of the Schedule, being Plot no. 2212 purchased from
BechuramKoyal on 6th December 1963. Defendant no. 6 Gopal Chandra
Khan has, in the written statement at page 29 of the Paper Book, admitted
that the said Plot was sold by the original owner Sucharan to the father of
Khagendra Nath Khan namely, Motilal Khan in 1944. The title deed has
been exhibited as No. 7. It is quite possible that the C.S.R.O.R. may not
have been rectified, altered, or applied for being altered after the sale in the
name of Motilal and Sucharan. At the risk of repetition that a record of right
is not evidence of actual title, it is found that the title of the property in the
name of Khagendranath and his father Motilal is clearly evident from exhibit
11 which is a document dated 6th December 1963.
23. It is now well settled that an entry in revenue records is not conclusive
proof of title. It may at best indicate a possessory right. Reference in this
regard is made to the decision of Prahlad Pradhan and Ors v. Sonu
Kumar and Ors reported in (2019) 10 SCC 259. At paragraphs 5 and 6 it
was held as follows:-
"5. The contention raised by the appellants is that since Mangal
Kumhar was the recorded tenant in the suit property as per the
Survey Settlement of 1964, the suit property was his self-acquired
property. The said contention is legally misconceived since entries in
the revenue records do not confer title to a property, nor do they have
any presumptive value on the title. They only enable the person in
whose favour mutation is recorded, to pay the land revenue in respect
of the land in question. [Bhimabai Mahadeo Kambekar v. Arthur
Import & Export Co., (2019) 3 SCC 191 : (2019) 2 SCC (Civ)
21; Narasamma v. State of Karnataka, (2009) 5 SCC 591 : (2009) 2
SCC (Civ) 582; Balwant Singh v. Daulat Singh, (1997) 7 SCC
137; Sawarni v. Inder Kaur, (1996) 6 SCC 223] As a consequence,
merely because Mangal Kumhar's name was recorded in the Survey
Settlement of 1964 as a recorded tenant in the suit property, it would
not make him the sole and exclusive owner of the suit property.
6. The appellants have failed to adduce any evidence whatsoever,
apart from the Survey Settlement of 1964 to establish that the suit
property was the self-acquired property of Mangal Kumhar."
24. A registered title deed is any day a better, clear, and actual proof of
the title to a property. It is quite possible that there may have not been a
rectification of the Record of Rights. The entry may also be incorrect
sometimes. In the instant case, the parties are in continuous possession of
the property for more than 5 decades based on the title deeds. The title
deeds and continuous possession of the property are sufficient to prove the
title of the parties to the properties in question. The Court below erred in
ignoring the same.
25. It is clear evident to this Court that in respect of each of the 18 Items
mentioned in the Schedule to the plaint, title deeds and documents have
been exhibited. Each of the documents are more than 50 years old. In
respect of some plots of land, the plaintiffs as well as the defendants are in
continuous occupation for more than 40 years. The suit, therefore, could
not have been dismissed for non-joinder of parties.
26. There is another aspect of the matter. The Court below found that one
of the properties is a water body called "Doba". The Court below found that
a water body cannot be partitioned by metes and bounds. The said plot no.
2208 was purchased on 6th December 1963 by Khagendra Nath Khan. It is
now a well-settled principle of law of partition and also under the Partition
Act of 1893 that if a property cannot be divided by metes and bounds an
option is required to be given to the parties to buy out the shares of the
other. If any of the shareholders are not willing to buy, the same property
may be sold and/or auctioned to a third party. The learned Trial Judge,
therefore, wholly failed in holding that a water body cannot be partitioned or
subject matter of a partition suit.
27. The object and purpose of partition suits have been discussed in the
decision of the Supreme Court in the case of Shub Karan Bubna Vs Sita
Saran Bubna and Ors. reported in (2009) 9 SCC Pg 689. At paragraphs 5,
6, and 7, it was held as follows:-
"The issue
5. "Partition" is a redistribution or adjustment of pre-existing rights,
among co-owners/coparceners, resulting in a division of lands or
other properties jointly held by them into different lots or portions and
delivery thereof to the respective allottees. The effect of such division
is that the joint ownership is terminated and the respective shares
vest in them in severalty.
6. A partition of a property can be only among those having a share or
interest in it. A person who does not have a share in such property
cannot obviously be a party to a partition. "Separation of share" is a
species of "partition". When all co-owners get separated, it is a
partition. Separation of share(s) refers to a division where only one or
only a few among several co-owners/coparceners get separated, and
others continue to be joint or continue to hold the remaining property
jointly without division by metes and bounds. For example, where
four brothers owning a property divide it among themselves by metes
and bounds, it is a partition. But if only one brother wants to get his
share separated and other three brothers continue to remain joint,
there is only a separation of the share of one brother.
7. In a suit for partition or separation of a share, the prayer is not only
for declaration of the plaintiff's share in the suit properties, but also
division of his share by metes and bounds. This involves three issues:
(i) whether the person seeking division has a share or interest in
the suit property/properties;
(ii) whether he is entitled to the relief of division and separate
possession; and
(iii) how and in what manner, the property/properties should be
divided by metes and bounds?
In a suit for partition or separation of a share, the court at the first
stage decides whether the plaintiff has a share in the suit property
and whether he is entitled to division and separate possession. The
decision on these two issues is exercise of a judicial function and
results in first stage decision termed as "decree" under Order 20 Rule
18(1) and termed as "preliminary decree" under Order 20 Rule 18(2)
of the Code. The consequential division by metes and bounds,
considered to be a ministerial or administrative act requiring the
physical inspection, measurements, calculations and considering
various permutations/combinations/alternatives of division is referred
to the Collector under Rule 18(1) and is the subject-matter of the final
decree under Rule 18(2)."
28. This Court notes with anguish that the said issue of partition between
the parties has been pending for more than 18 years.
29. It is clear to this Court from the evidence on record, the discussions
aforesaid, from the interim orders passed and interim proceedings that the
defendants have been rather adamant and want to continue to occupy
portions of the joint property. In anticipation of the partition, they have also
tried to make construction and have cut off valuable trees in their control.
The suit for partition joint property is thus opposed by the defendants for
collateral purposes.
30. This Court is of the view that the impugned judgment and order dated
19th February 2012 is wholly erroneous and is liable to be set aside.
31. The matter is remanded back to the Court below to pass a preliminary
decree for partition within one month mandatorily and positively, after
deciding the respective shares of the parties. The 18 properties mentioned in
the Schedule shall be the subject matter of partition between all the parties.
32. After passing of a preliminary decree, the Court may appoint a
Commissioner of Partition to divide the suit property by metes and bounds
to the extent possible either by relocation and reallocation or any manner
permissible in law. FA 189 of 2013 is, therefore, stand allowed and
disposed of.
33. The shall be no order as to costs.
34. Urgent photostat certified copies of this judgment, if applied for, be
made available to the parties subject to compliance with requisite
formalities.
(Rajasekhar Mantha, J.)
I agree.
(Supratim Bhattacharya, J.)
09.08.2023
1. After the judgement is delivered in open Court, it is submitted by the
counsel for the respondents that the LCR may be sent expeditiously before
the court below.
2. Let the LCR be sent forthwith by the Registry by special messenger.
Costs whereof shall be borne by the appellants.
(Rajasekhar Mantha, J.)
I agree.
(Supratim Bhattacharya, J.)
