Calcutta High Court (Appellete Side)
Narayan Chandra Datta @ Narayan ... vs Aruna Dutta & Ors on 6 January, 2023
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswaroop Chowdhury
C.O. 2664 of 2022
Narayan Chandra Datta @ Narayan Datta
VERSUS
Aruna Dutta & Ors.
For the defendant/petitioner: Mr. Surya Prosad Chattopadhyay, Adv.
Mr. Arujun Samanta, Adv.
Mr. Ankit Chatterjee, Adv.
for the opposite parties: Mr. Washef ali Mondal, Adv.
Last Heard on : December 16,2022
Judgment on : January 06, 2023
Biswaroop Chowdhury.:
The petitioner before this Court is the defendant in a suit for
declaration and partition before Learned Civil Judge (Senior
Division) at Barasat being Title Suit No - 237 of 2008 and is
directed against the order dated 7-05-2022 passed by the Learned
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Judge rejecting the application filed by the petitioner under order
26 Rule 9 of the Code of Civil Procedure.
The case of the petitioner may be summed up thus:
1. The opposite parties instituted Title Suit praying decree for
declaration, partition and injunction before the Learned 2nd
Court Civil Judge Senior Division at Barasat.
2. The petitioner appeared before the Learned Court and
contested the suit, and a preliminary decree was passed.
3. Pursuant to the passing of preliminary decree survey
Commissioner was appointed who upon completion of
commission work submitted his report. The report submitted
by survey commissioner was rejected by the Learned Trial
Court.
4. The petitioner pursuant to the rejection of the report filed
application under Order 26 Rule 9 of the Code of Civil
Procedure with a prayer for conducting survey on the following
points.
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A. Whether any construction is going on over any portion of
the suit property or not and if so, the construction
regarding its length and breadth.
B. Whether there is a common passage over the suit property
or not and if there is passage measuring the same towards
East or West.
C. Whether any construction or pillar/boundary was made
upon the common passage or not? And if made then to
state whether it was constructed according to building plan
and municipal law? Whether any partition plan existed
between the parties or not?
D. Whether plaintiff or his promoter made the construction
upon the plaintiff's allotted land or upon the common
passage? If encroached measure the area of encroachment.
E. Local features.
F. Rough sketch map.
The opposite parties/plaintiff's contested the application by filing
written objection. By order dated 07/05/2022, learned trial Court
was pleased to reject the application under Order 26 Rule 9 of Code
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of Civil Procedure filed by the Petitioner/Defendant. The petitioner
being aggrieved has come up with the instant application. It is the
contention of the petitioner that the Learned Trial Court erred in
law and fact in erroneously observing that the points as regards
which the defendant has sought for a report were not the matters of
dispute in the suit. It is further contended that the Learned Trial
Court ought to have considered the fact that during the pendency of
the suit the said Satyandranath Dutta have appointed a promoter
and/or developer in order to develop his portion of the property that
is the property demarcated as plot no 'A', and marked with Red
border in the plan of the said partition deed dated 14-12-1982. It is
also contended that the Learned Trial Court ought to have
considered the fact that the plaintiff's/opposite parties are also
carrying on construction in such a manner in order to convert the
common passage of the suit property in to main entrance of the
premises demarcated as plot no. A.
Heard Learned Advocate for the petitioner and Learned
Advocate for the opposite parties Learned Advocate for the
petitioner submits that the subject matter of the Writ Petition being
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WPA 1184 of 2021 and the application for appointment of survey
Commissioner under order 26 Rule 9 of the Code of Civil Procedure
were different, which the Learned Trial Court failed to appreciate.
Learned Advocate draws attention to the Order passed in the Writ
Application being WPA - 1184 of 2021 where the Learned Judge of
this Court while disposing the writ application was pleased to direct
the Municipal Authority to consider the representation with regard
to unauthorized construction only and not enter into or decide any
private dispute of the parties regarding right title and interest in
respect of the said land. Learned advocate for the opposite parties
submits that the grievance of the petitioner is already adjudicated
in Writ Petition being WPA 1184 of 2021 thus the application for
appointment of Commissioner is not maintainable. Learned
Advocate further submits that when a preliminary decree is already
passed in partition suit there is no scope to appoint Commissioner
under Order 26 Rule 9, but Commissioner can only be appointed
under order 26 Rule 13 of the Code of Civil Procedure for partition
of immovable property.
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Now upon perusing the operative portion of the order passed
by the Learned Trial Court it appears that the Learned Trial Court
disposed the application under Order 26 Rule 9 the Code of Civil
Procedure with the following observation.
'The points as regards which the defendant has sought for
appointment of Learned Commissioner appear to be those in
respect of which the Hon'ble Court has directed respondent No-3 of
WPA 1184 of 2021 to take steps.
It is further required to be stated here that the original suit for
partition has already been disposed off by this Court and Learned
Commissioner was appointed for affecting the partition by metes
and bounds. It further appears that the points as regards which the
defendant has sought for report of commissioner were not the
matters in dispute in the suit filed by the plaintiff.
Keeping in mind these facts and circumstances this Court is
not inclined to allow the prayer of the defendant.'
Upon perusal of the order passed in WPA - 1184 of 2021 it
appears that the said application was disposed by a Learned Single
Judge of this Court by observing as follows:
'The writ petition is accordingly disposed of by directing the
respondent no.3 to consider and dispose of the representation made
by the petitioner strictly in accordance with law after giving an
opportunity of hearing to all the necessary parties including the
petitioner at the earliest but positively within a period of six months
from the date of communication of a copy of this Order. The said
respondent shall pass a reasoned order and communicate the same
to all the necessary parties, including the petitioner immediately
thereafter.
In the event the aforesaid respondent is of the considered
opinion that the construction has been made either in violation of
the plan sanctioned or devoid the sanction plan, then necessary
steps shall be taken to deal with such unauthorized construction,
in accordance with law. The aforesaid respondent shall restrict the
consideration of the representation with regard to unauthorized
construction only and not enter into or decide any private dispute of
the parties regarding right title and interest in respect of the
aforesaid land.'
Thus upon reading the observation made by the Learned
Judge of this Court in WPA 1184 of 2021 it appears that the
Learned Judge made it clear that the concerned respondent
municipal authority shall consider the representation of the
petitioner with regard to unauthorized construction only and if the
said respondent is of the considered opinion that the construction
has been made either in violation of the plan sanctioned or devoid
the sanction plan then necessary steps shall be taken to deal with
such unauthorized construction in accordance with law. The
respondent/municipal authority was restrained from entering into
or deciding any private dispute of the parties regarding title and
interest in respect of the aforesaid land.
In the application for appointment of Commissioner
before the Learned Court below the following points were raised to
be enquired by the Commissioner?
1. Whether any construction is going on over any portion of the
suit property or not and if the construction is going on then
state whether it is new or old and measure the construction
regarding its length and breath.
2. Whether there is a common passage over the suit property or
not and if there is passage measuring the same towards East
to West?
3. Whether any construction of pillar/boundary wall was made
upon the common passage or not? And if made then state
whether it was, constructed according to building plan and
municipal law? Whether any partition plan existed between
the parties or not?
4. Whether plaintiffs or his promoter constructed the
construction upon the plaintiffs allotted land or upon the
common passage? If encroached measure area of
encroachment.
5. Local features.
6. Rough sketch map.
Thus upon perusing the points sought to be enquired by
appointment of commissioner it appears that only one point deals
with enquiry as to whether plaintiff made construction on common
passage according to building plan and municipal law.
It is well settled principle of law that Municipal Authority has
obligation to see as to whether construction of building is made
according to sanctioned plan, it has no jurisdiction to see as to
whether co-sharer has given any consent to the said construction
or not. On the other hand a Civil Court hearing a partition suit has
an obligation to see that status-quo with regard to the suit
property is maintained during pendency of the partition suit.
In the case of Sant Ram V Daya Ram reported in AIR-1961
Punjab-P528 the Hon'ble Court listed the following propositions on
the subject of the rights and obligations of co-owners in joint
properties.
1. A co-owner has an interest in the whole property and also in
every parcel of it.
2. Possession of the joint property by one co-owner is in the eye
of law possession of all even if all but one are actually out of
possession.
3. A mere occupation of a larger portion or even of an entire joint
property does not necessarily amount to ouster as the
possession of one is deemed to be on behalf of all.
4. The above rule admits of an exception when there is ouster of
co-owner by another. But in order to negative the presumption
of joint possession on behalf of all on the ground of ouster the
possession of a co-owner must not only be exclusive but also
hostile to the knowledge of the other, as when a co-owner
openly asserts his own title and denies that of the other.
5. Passage of time does not extinguish the right of the co-owner
who has been out of possession of the joint property except in
the event of ouster or abandonment.
6. Every co-owner has a right to use the joint property in a
husband like manner not inconsistent with similar rights of
other co-owners.
7. Where a co-owner is in possession of separate parcels under
an arrangement consented to by the other co-owners it is not
open to anyone to disturb the arrangement without the
consent of others, except by filing a suit for partition.
8. The remedy of a co-owner in possession or not in possession of
a share of the joint property is by a suit for partition as for
actual joint possession but not for ejectment. Same is the case
where a co-owner sets up an exclusive title in himself.
9. Where a portion of the joint property is by common consent of
the co-owners resolved for a particular common purpose it
cannot be diverted to an inconsistent user by a co-owner; if he
does so he is liable to be ejected and the particular parcel will
be liable to be restored to its original condition. It is not
necessary in such a case to show that special damage has
been suffered.
It has also been held in different judicial decisions that one of
several joint owners is not entitled to erect a pucca building upon
joint property without the consent of the other co-sharers even
though the erection of such a permanent structure may not
cause direct loss to the other joint owners. It is well settled that
the suit for partition does not come to an end with the passing of
the preliminary decree but that it continues upto the stage the
final decree is prepared. It is also well established that in such
suits more than one preliminary decree can be passed. It is
further well established that the Court should as far as may be
avoid multiplicity of suits by compelling the party to go in for
fresh suits with respect to the property in question. Thus it is
clear that changes in circumstances after the preliminary decree
is passed can be taken into account.
As an important point is raised about encroachment on
common passage such point should not remain without enquiry
by commission as it well settled that every co-owner is entitled to
make full use of the common passage. Learned Judge while
disposing the application for appointment of survey
commissioner rejected the prayer of the petitioner firstly on the
ground that the points as regards which the defendant has
sought for appointment of Learned Commissioner appear to be
those in respect of which this court in writ jurisdiction has
directed the Municipal Authority to take steps. The second
ground cited for rejection is that original suit for partition has
already been disposed off and learned commissioner was
appointed for affecting partition by metes and bounds, and the
points which the defendant sought for report of commissioner
were not the matters in dispute in the suit filed by the plaintiff.
Upon perusing the Order passed by the Learned Trial Court,
and the order passed in Writ Petition WPA 1184 of 2021 and the
points raised in the application for appointment of commissioner
this Court is of the view that as the Learned Judge of this Court
while disposing the writ petition. WPA - 1184 of 2021 observed
that the Municipal Authority shall restrict the consideration of
the representation with regard to unauthorized construction only
and not enter into or decide any private dispute of the parties
regarding right title and interest in respect of the suit land there
is no bar in appointing a Commissioner to enquire the points
raised by the petitioner except the point of construction without
building plan. Now with regard to the 2nd ground for rejection as
cited by the Learned Judge that the original suit for partition is
already disposed and Learned Commissioner is appointed for
affecting the partition by metes and bounds, and the points as
regards which the defendant has sought for report of
commissioner were not the matters in dispute in the suit filed by
the plaintiff this Court is of the view that as the suit for partition
does not come to an end with the passing of the preliminary
decree but that it continues upto the stage of the final decree is
prepared, and in order to prevent multiplicity of proceedings
change in circumstances can be taken into account the ground
cited by Learned Trial Court cannot be sustained.
Although an order rejecting prayer for appointment of
commissioner is usually not revisable but considering the nature
of the suit and the disputes raised this court is of the view that in
the interest of justice there should be an appointment of
Commissioner.
In view of the discussion made hereinabove the order dated
07/05/2022 passed by Learned Civil Judge (Senior Division) at
Barasat in T.S. 237/2008. is set aside. The application for
appointment of Commissioner stands allowed. Sri Samar
Banerjee Learned Advocate and member Bar Association City
Civil Court Calcutta and member of Bar Association Presidency
Small Causes Court Calcutta is appointed as survey
Commissioner to enquire the following points.
1. Whether any construction is going on over any portion of the
suit property or not and if the construction is going on then
state whether it is new or old and measure the construction
regarding its length and breadth.
2. Whether there is a common passage over the suit property or
not and if there is passage measuring the same towards
East or West?
3. Whether plaintiffs or his promoter made the construction
upon the plaintiff's allotted land or upon the common
passage? If encroached measure the area of Encroachment.
4. Local features.
5. Rough sketch map.
Learned Commissioner shall upon notice to all parties and
their Learned Advocates cause enquiry as stated above and upon
completion of enquiry shall submit report before Learned Court
below within four weeks, from the date of communication of this
order. Learned Commissioner shall be entitled to a remuneration
of 600 gms to be paid by the petitioner. Learned Advocate for the
petitioner is requested to serve copy of the plaint, copy of the
application under Order 26 Rule 9 of the Code of Civil Procedure
and copy of the preliminary Decree to the Learned Commissioner.
This Revisional Application stands disposed. However, in the
facts and circumstances of the case there shall be no order as to
costs.
Urgent photostat certified copy of this order, if applied for,
should be made available to the parties upon compliance with the
requisite formalities.
(Biswaroop Chowdhury, J.)
