Calcutta High Court (Appellete Side)
Ashutosh Ghosh vs Ujjala Das & Ors on 23 March, 2023
SAT 13 of 2015
Item-44. CAN 1 of 2015 (old CAN 932 of 2015)
23-03-2023
sg
Ct. 8
Ashutosh Ghosh
Versus
Ujjala Das & Ors.
The matter initially appeared in the warning list on 29 th
November, 2022 and thereafter transferred to the regular list on 5 th
December, 2022. There was a clear indication in the list that the
matter shall be transferred to the daily cause list on 5th December,
2022 and since then the appeal is appearing in the list. In spite of
having due notice and knowledge that the matter is pending, the
appellants are not represented. The appellant has also not taken any
step to remove the defects as notified by the Stamp Reporter on 17th
January, 2015. It is clear that the appellant is not interested to
proceed with the matter.
We could have dismissed the appeal for non-removal of the
defects. However, we propose to have a look at the judgments of
both the courts in order to find out whether the second appeal
involves any substantial question of law.
The appeal is arising out of a judgment and decree dated
08.09.2014 passed by the learned Civil Judge (Senior Division),
Ranaghat, Nadia affirming the judgment and decree dated
07.05.2011 passed by the learned Civil Judge (Junior Division), 2 nd
Court, Ranaghat in a suit for partition. The partition suit was
dismissed on contest. In absence of the learned Advocate for the
appellant/plaintiff, we have carefully read the judgments of both the
courts and the grounds of appeal.
2
Briefly stated; the suit property originally belonged to
Promotho Nath Chakraborty. Said Promotho Nath Chakraborty vide
deed no. 172, dated 06.01.1959 sold the suit property to Birendra
Kr. Singha and Monmohan Das. While the suit property was being
so owned and possessed by Birendra Kr. Singha and Monmohan
Das, by an auction sale, dated 21.11.1968, the suit property was
purchased by Chandra Mohan Ghosh and Lalit Ch. Singha. Chandra
Mohan Ghosh and Lalit Ch. Singha possessed the suit property by
partitioning the suit property amongst themselves. The father of the
plaintiffs possessed 0.56 decimals. The plaintiffs inherited the 0.56
decimals of Chandra Mohan Ghosh and started possessing same.
Later the plaintiffs and the defendants vide deed dated 22.02.1999
sold .020 decimals from 59 decimals to Bhasan Ch. Majumder. The
remaining .036 decimal was possessed by the plaintiffs. The suit
property has never been partitioned by metes and bounds. On
requesting the defendant to partition the suit property the defendant
refused and threatened the plaintiffs that she will transfer the sit
property to third party. The plaintiffs thus filed the suit for partition.
The defendant had appeared in the Title Suit and filed
written statement disputing and denying the plaintiff's case.
On the basis of the aforesaid pleadings, the trial court
framed six issues.
The suit plot is of 1.18 acres. The plaintiffs claimed that
they have title over 59 decimals of land inherited from their father
and out of the 59 decimals they sold 20 decimals to Bhasan Ch.
Majumder. The plaintiffs had also stated that after purchase of the
suit property by their father Chandra Mohan Ghosh and Lalit Ch.
Singha there was a partition of the suit property between them.
3
However, during evidence PW-1 stated that there was no registered
deed of partition nor was there any partition of the suit plot through
Court. In absence of any such registered deed, a partition cannot be
presumed and on the contrary, the presumption would be that all the
co-sharers of the suit property would have right, title and interest
over ever inch of the suit plot. The plaintiffs even had failed to
prove that 20 decimals of land alleged to have been sold to Bhasan
Ch. Majumder was sold by any specific demarcation. Bhasan Ch.
At the highest would be a co-share on the suit plot. The plaintiffs
have also admitted that the land of one Surendra is included in the
suit plot but he has not been made a party. The defendant has also
admitted that the defendant was the owner of 39 decimals of land.
The defendant claimed to have purchased 39 decimals out of 59
decimals owned by Manmohan Das, in the event the defendant is
believed that Monmohan Das would also have share in the suit plot.
As the plaintiffs admitted that Bhasan and Surendra have their share
in the suit plot. In the absence of there being any partition between
Lalit Ch. Singha and Chandra Mohan Ghosh from whom the
plaintiffs traced their title in the suit property would remain the un-
partitioned property and although the co-sharers of the suit property
were to be included in the suit. The plaintiffs/appellants had failed
to give a clear picture of their title as well as also the title of the
defendant/respondent in the suit property. The suit was also bad in
defect of the parties. One PW-1 admitted that the defendant has 39
decimals of land in the property then on which basis, the plaintiffs
claimed 36 decimals of land was not made clear and the plaintiffs
have failed to prove their case over and in respect of 36 decimals of
land as claimed in the suit.
The plaintiffs having failed to prove its case is not entitled to
a decree of partition. The concurrent findings of facts of both the
courts do not call for any interference. We do not find any reason to
admit the second appeal as it does not involve any substantial
question of law.
In view of the aforesaid observation, the appeal stands
dismissed.
In view of the dismissal of the appeal, the connected
applications also stand dismissed.
(Uday Kumar, J.) (Soumen Sen, J.)
