Sri Nirmalendu Karmakar vs Sri Rathindra Nath Karmakar & Anr
2023 Latest Caselaw 772 Cal

                     IN THE HIGH COURT AT CALCUTTA
                                 Civil Appellate Jurisdiction
                                    APPELLATE SIDE

Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee


                                          FA 17 of 2023
                                         FAT 308 of 2018

                                  Sri Nirmalendu Karmakar
                                           versus
                             Sri Rathindra Nath Karmakar & Anr.


For the Appellant            :       Mr. Souri Ghosal,
                                     Mr. Prabhat Kumar Singh.


For the Respondent No.1      :       Mr. Rahul Karmakar,
                                     Mr. Abir Lal Chakraborty.


For the Respondent No.2      :       Ms. Gargi Goswami.



Hearing is concluded on      :       10th January, 2023.



Judgment On                  :       30th January, 2023.



Partha Sarathi Chatterjee, J.

1. Legality and propriety of the judgment and decree dated 19th April,

2018 passed by the learned Civil Judge, Senior Division, 2nd Court, Barasat,

North 24 Parganas are under challenge in this appeal.

2. By the judgment and decree impugned, the suit for partition was

decreed in preliminary form and parties to the suit were declared to be the

owners of 1/3rd share each in the suit property and counter-claim filed by

the defendant no.1 was dismissed.

3. Capsulated form of the facts leading to this appeal is that plaintiff

filed one suit for partition and separate possession in respect of the suit

property. Facts depicted in the plaint, in brief, are as follows:

i. One Gopal Chandra Karmakar, since deceased, purchased the

suit property from Government of West Bengal by virtue of a

registered deed of sale vide. no. 4773 of 1972 and thereafter,

Mr. Karmakar constructed a two-storied building thereon;

ii. By virtue of a deed of gift vide. no. 6066 of 1972, the suit

property was gifted to Gour Hari Karmakar being the son of the

Gopal Chandra Karmakar. Gopal Chandra Karmakar expired on

21.8.1973;

iii. Gour Hari died intestate on 21.12.2010 leaving behind him the

plaintiff, defendant no.1 being the two sons and the defendant

no.2 being the daughter as his legal heirs and plaintiff claimed

himself to be the owner of 1/3rd share of the suit property;

iv. It was contended therein that entire ground floor of the suit

property consists of ten rooms with four attached bath and four

common latrine having four feet wide common passage and

defendant no.1 is running one lodge, namely 'Santi Lodge' in

six rooms and another lodge, namely 'Santi Kunja' in four rooms

since 2005 and 1999 respectively and is earning Rs. 1,13,500/-

per month from the aforesaid two lodges and defendant no.1 is

running one hardware business therein and plaintiff claimed

himself to be entitled to 1/3rd share of the income coming from

the said businesses;

v. Since the plaintiff felt inconvenience to possess and enjoy the

suit property which is a joint property, he approached the

defendant no.1 to have it partitioned by giving a letter dated

18.08.11 but defendant no.1, in his reply by a letter dated

19.09.2011, claimed himself to be the exclusive owner of the

ground and 1st floor of the building on the rear portion of the

suit property;

vi. It was specifically claimed that neither did their father nor did

he give consent to the defendant no.1 to raise any construction

on the rear portion of the suit property and the plaintiff and his

father contributed major share of expenses in that construction

whereas defendant no.1 incurred a paltry sum for that purpose

and even plaintiff lent Rs. 2,30,000/- to the defendant no.1 for

revival of his business;

vii. However, ultimately, the defendant no.1 refused to effect

partition of the suit property and hence, the suit.

4. Defendant no.1 contested the suit by filing written statement along

with counter claim. Crux of the case of the defendant no.1 projected therein

is as follows :

i. Defendant no.1 constructed two-storied building on rear portion

of the suit property with his own fund and with due permission

of the original owner, namely, Gour Hari Karmakar and the

plaintiff;

ii. Defendant no.1 took loan of Rs. 1.6 lakhs and 2.3 lakhs from

his father and the plaintiff respectively to construct two storied

building on rear portion of the suit property but he paid back

those amounts to them which would be evident from the

statement of his bank account;

iii. That the front portion of the suit property was allotted to the

plaintiff whereas the rear portion of the suit property was

allotted to the defendant no.1 on mutual agreement and since,

during the marriage of the defendant no.2 a considerable

amount of money was spent, Gour Hari did not allot any share

to defendant no.2;

iv. Ultimately, he prayed for declaration that he is the absolute

owner of the land and two storied structure on the rear portion

of the suit property with his right to use common passage

situated on the front portion of the ground floor of the suit

premise facing the main road, Bonoful Sarani and the common

passage situated on the southern side of the ground floor

leading to the western end of the suit premises from east i.e.

from main road.

5. Defendant no.2 although did not contest the suit till the end but by

filing a written statement she claimed to be owner of 1/3rd share of the

entire suit property.

6. Plaintiff and defendant no.2 by filing two separate written

statements against the counter-claim of the defendant no.1 in the same

tune emphatically denied that Gour Hari and plaintiff gave consent to the

defendant no.1 to construct two storied structure on rear portion of the suit

property and they also denied that defendant no.1 constructed that

structure out of his own fund and it was asserted therein that in absence of

any legally enforceable document, defendant no.1 cannot claim himself to be

the owner of the land and structure lying on the rear portion of the suit

property and lastly, prayer was made for dismissal of the counter-claim of

the defendant no.1.

7. Record reveals that the learned court below framed as many as nine

(9) issues and to substantiate his claim, plaintiff adduced his oral testimony

and was examined as PW-1 and he tendered some documents namely,

certified copies of the deed of sale vide. no. 4773 of 1972, certified copy of

the deed of gift vide. no. 6066 of 1972, copies of three letters addressing to

O.C., Lake Town P.S. - marked as Ext. 1(a) to 1(d), certificate of death of

Gour Hari Karmakar - Ext.-2, Municipality Tax Receipts - Ext.-3, Advocate's

letter dated 18.08.2011, Postal receipt and A/D card - Ext.- 4 to 4(b),

Advocate's letter dated 19.9.2011 - Ext.-5.

8. On the other hand, defendant no.1 and defendant no.2 adduced

their oral accounts and were examined as DW-1 and 2 respectively and no

document had been produced on behalf of the defendants.

9. On scrutiny of the pleadings and evidence of the respective parties,

the suit was decreed in preliminary form and counter-claim of the defendant

no.1 was dismissed and parties to the suit were declared to be the owners of

1/3rd share each of the suit property.

10. Aggrieved thereby, the defendant no.1/appellant (in short, the

appellant) has preferred this appeal, inter alia, on the grounds that there

was another sister of the parties to the suit, namely, Indrani Karmakar who

had not been impleaded in the array of the parties of the suit and hence, the

suit is bad for non-joinder of parties and it was within the knowledge of the

plaintiff that the appellant had been running business on the rear portion of

the suit property and learned court below failed to appreciate that there is

implied gift of rear portion of the suit property in favour of the appellant.

11. Learned advocate representing the appellant submitted that the

appellant is also interested to get the suit property partitioned but it had

been evident that the appellant had constructed two storied structure on the

rear portion of the suit property and he had been running business from

that structure with full knowledge of the plaintiff and hence, learned court

below should have declared that defendant no.1 is exclusive owner of the

two storied structure and land situated on the rear portion of the suit

property and front portion would be partitioned in accordance with law.

12. Learned advocate appearing for the respondent no.1 strenuously

denied and disputed the contention of the appellant. He added that there is

no evidence to prove that the defendant no.1 had constructed the structure

standing on the rear portion out of his fund and that the land and structure

lying on the rear portion of the suit was allotted to defendant no.1 and that

there was no previous partition and hence, claim of the defendant no.1

cannot be acceded to. He prayed for dismissal of the appeal.

13. In the given case, admitted facts are that Gopal Chandra

Karmakar happened to be owner of the suit property and then, he

constructed two storied building on the front portion of the suit property.

Then, he gifted the suit property to his son, Gour Hari Karmakar.

14. From the cross-examination of DW-2, it transpires that Gour Hari

left behind two sons, being the plaintiff and the defendant no.1 and two

daughters, being the defendant no.2 and one married daughter, Indrani,

since deceased. Consequently, defendant no.1 raised a plea that suit was

bad for non-joinder of necessary parties.

15. Indrani died issueless and hence, the learned court below has

held that the share of Indrani had devolved upon the parties to the suit,

being legal heirs of her father, in view of Section 15(2)(a) of Hindu

Succession Act and hence, suit is not bad for non-joinder of necessary

parties and we do not find any infirmity in such decision.

16. In the present appeal, the main dispute centres around the claim

of the defendant no.1 to the effect that defendant no.1 has constructed two

storied structure on the rear portion of the suit property out of his own fund

with the consent of his father, Gour Hari and the plaintiff and that he has

been running two lodges in the rear portion of that property and hence, the

defendant no.1 has claimed himself to be absolute owner of the land and

structure situated on the rear portion of the suit property and he has also

claimed that the defendant no.2 has no share in the suit property since

during her marriage a considerable amount of money was spent.

17. In his cross-examination, defendant no.1 admitted that he has

nothing to show that rear portion was allotted to him and he admitted that

he has not filed any document to show that he was given the right to make

construction of two storied structure on the rear portion of the suit premises

out of his fund. Defendant no.1 admitted that the building plan was

sanctioned in name of his father and that no partition had taken place

amongst the co-sharers before filing of the suit.

18. Gour Hari died intestate. Since, Indrani died issueless, there are

only three legal heirs of Gour Hari being the parties to the suit.

19. Defendant no.1 although claimed that rear portion was allotted to

him whereas front portion was allotted to plaintiff and that such allotments

were made orally but both the plaintiff and defendant no.2 have vehemently

disputed such contention.

20. In such sequence of facts, learned court below has rightly refused

to accept such claim of the defendant no.1 and in absence of any legally

enforceable document, defendant no.1 cannot be held to be exclusive owner

of the land and structure situate on the rear portion of the suit property. It

is axiomatic that unless and until one joint property is partitioned either by

way of execution of deed or by the intervention of the court, it cannot be

held that there was severance of tenement.

21. Even if it is proved that the defendant no.1 is in occupation of the

rear portion exclusively but such possession must be deemed to be a

possession on behalf of all the co-sharers and in the case at hand, no case

of forceful ouster of other co-sharers from that portion could be established.

22. In the absence of any document showing previous partition,

defendant no.1 cannot be declared to be the exclusive owner of land and

structure lying on the rear portion of the suit property and also of the

common passage or passages as claimed in his counter-claim. However, the

plaintiff has also failed to prove that he is entitled to get any share in the

earnings from the businesses, namely, Santi Lodge, Shanti Kunja and

hardware business also.

23. In view thereof, we are of the considered view that the learned

court has rightly dismissed the counter-claim and has declared the parties

to the suit to be the owner of 1/3rd share each of the suit property.

24. We do not find any perversity, infirmity or material irregularity in

the judgment and decree impugned. Consequently, the appeal be and the

same being devoid of merits is dismissed, however, without any order as to

costs. Judgment and decree impugned herein are affirmed.

25. Let a decree be drawn up accordingly.

26. Let a copy of this judgment along with LCR be sent down to the

learned court below forthwith.

27. Urgent Photostat copy of this judgment, if applied for, shall be

granted to the parties as expeditiously as possible, upon compliance of all

formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)