Calcutta High Court (Appellete Side)
Pritilekha Nayek & Ors vs Gobinda Biswas & Ors on 3 May, 2023
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 63 of 2023
FAT 4 of 2017
Pritilekha Nayek & Ors.
versus
Gobinda Biswas & Ors.
For the Appellants : Mr. Partha Pratim Roy,
Mr. Dyutiman Banerjee.
For the Respondent No.1 : Mr. Asis Chandra Bagchi, Ld. Sr. Adv.,
Mr. Soumyadeep Biswas.
Hearing is concluded on : 20th April, 2023.
Judgment On : 3rd May, 2023.
Partha Sarathi Chatterjee, J.
1. Judgment and decree dated 21st September, 2016 passed by the
learned Civil Judge, Senior Division, 1st Court at Krishnagar, Nadia in Title
Suit No. 112 of 2012, whereby the suit was decreed in preliminary form
declaring the shares of the parties to the suit in respect of the properties
delineated in Schedule -'B' appended to the plaint, are under challenge in
the present appeal.
2. One Gobinda Biswas (in short, Gobinda) filed one suit for
declaration with an alternative prayer for partition which was registered as
Title Suit No. 112 of 2012. Facts spelt out in the plaint, which are germane,
are as follows:
i) Property described in schedule-'B' was originally belonged to
one Debendranath Banerjee, who by dint of one registered deed
of sale transferred a demarcated portion from 'B' schedule
property, which has been described in schedule 'A' appended to
the plaint, to his son, Ashok @ Arjun Banerjee (in short, Ashok)
annexing one map with the deed and that portion of property
was duly mutated in name of Arjun in LR R-O-R and also in the
assessment register of Krishnagar Municipality and Arjun paid
rents to the competent authority;
ii) Ashok sold out that specific portion i.e. 'A' schedule property to
the plaintiff by virtue of one registered deed of sale dated
18.06.2008 with a map annexed therewith and delivered
possession thereof to the plaintiff, who also in the same manner
got his name mutated in LR R-O-R and assessment register of
Krishnagar Municipality and paid rents and since, an error had
crept in the deed, one deed of rectification was also executed by
Ashok in favour of Gobinda on 03.09.2010;
iii) Gobinda claimed that after the possession was delivered to him,
he entrenched that portion of property with one boundary wall
and even fixed one grill gate at the entrance and he planted
mango and other fruit bearing trees thereon;
iv) The defendants are the co-sharers of 'B' schedule property and
defendant nos. 1, 2 & 3 openly threatened to take forceful
possession of 'A' schedule property from Gobinda and even
Gobinda gave proposal to defendant nos. 1 to 3 to make
partition of the entire 'B' schedule property if they were not
ready to accept boundary of 'A' schedule property but the
defendants rebuffed such claim of Gobinda and hence, the suit.
3. Following properties were described as 'A' and 'B' schedule
properties:
'A' schedule - District- Nadia, P.S. Kotwali, Mouza- Krishnagar,
J.L.No.92, Ward no. 19 (New) of Krishnagar Municipality, Holding
no.32/2(new), Khatian no. 959(L.R.), Plot no. 2481 (RS)
corresponding to 5120 (LR), Area- 3.90 out of 04 out of 68
decimals.
Measurement - North & South - 39 feet, Eastern Side- 34 feet,
Western Side- 53 feet.
Boundary -
On the north - common passage (West to East);
On the south- House of Jiten Roy or RS plot no. 3356;
On the East - House of Subrit Sen or R.S.plot no. 25864;
On the West - House of Jayanta Roy or R.S.plot no. 3356.
'B' schedule - District- Nadia, P.S. Kotwali, Mouza- Krishnagar,
J.L.No.92, Ward no. 19 of Krishnagar Municipality, Holding
no.32/2(new), Khatian no. R.S. 2481, Plot no. 3356 (RS)
corresponding to 5120(LR), Area- 68 decimals.
4. Only the defendant nos. 1, 2 & 3 (hereinafter referred to as the
appellants) contested the suit by filing written statement. Specific defence
taken by the appellants is as follows:
i) Ashok acquired ownership of a specific demarcated
portion of 04 decimals of land from his father,
Debendranath by virtue of one deed of sale vide. no. 184
dated 18.12.198 and Ashok possessed that portion of
land separately from other portion of R.S. plot no. 3356;
ii) Arjun @ Ashok by virtue of two deeds of sale vide. nos.
3295 and 4605 dated 25.5.1999 and 30.6.1999
respectively sold out that specific portion of land, which is
described as the 'A' schedule property, to Shibdas,
husband defendant no.1, since deceased and to her with
specific demarcation and delivered possession thereof to
defendant no.1 and her husband and defendant no.1 and
her husband erected boundary wall encircling the 'A'
schedule property and fixed grill gate at the entrance and
planted mango trees and other fruit bearing trees thereon;
iii) Appellants claimed that the story which Gobinda depicted
in the plaint to the extent that he was delivered
possession of 'A' schedule property was nothing but a
myth and no title in respect of 'A' schedule property has
been passed on in favour of Gobinda by virtue of deed of
sale dated 18.6.2008 and deed of rectification dated
3.9.2010 and story of mutation of 'A' schedule property in
name of Gobinda and payment of rent by him are all false
and the appellants are not the co-sharers of 'B' schedule
property;
iv) Gobinda having failed to take forceful possession of 'A'
schedule property, filed one complaint against Arjun @
Ashok before the Court of learned Chief Judicial
Magistrate, Krishnagar basing upon which a specific case
vide. Kotwali P.S. case no. 84 of 2012 U/s.
467/468/472/420/406 IPC was started against Ashok
wherein it was alleged that Ashok sold out 'A' schedule
property to defendant no.1 and her husband in 1999 and
again sold out the same to Gobinda and hence, Ashok
committed offences punishable under the aforesaid
provisions of the Indian Penal Code. It was claimed
therein that Gobinda suppressed the material facts and
did not come to the Court with clean hands.
5. Records reveal that upon the pleadings of the respective parties,
learned Court below framed as many as 7 (seven) issues and plaintiff
adduced oral testimonies of two witnesses whereas the defendant nos.1 to 3,
appellants herein, refuted the claim of the plaintiff by adducing oral
evidence of three witnesses and both the parties tendered certain documents
in support of their respective claims which were admitted in evidence as Ext.
nos.1 to 7 and Ext. nos. A to F.
6. Suit was decreed in preliminary form declaring that plaintiff and
appellants are entitled to shares of 0.039 acres and 04 acres of land
respectively whereas other defendants are entitled to share of 0.609 acres of
land from 'B' schedule property.
7. Aggrieved thereby, appellants impugned the judgment contending
inter alia that learned Court below ought to have held that Gobinda is not a
co-sharer in respect of the suit property and that Ashok had no transferable
right in respect of 'A' schedule property after selling the same to defendant
no. 1 and her husband and learned Court below committed error in holding
that the boundary depicted in the sketch map of deed of 1989 is different
from the boundary incorporated in the deed of defendant no.1 and her
husband.
8. Mr. Roy, learned advocate for the appellants submits that Ashok
got a definite and/or demarcated portion from his father and Ashok sold out
that demarcated portion to defendant no.1 and her husband and hence,
defendant no.1 and her husband cannot be stated to be co-sharers with
other co-sharers of 'B' schedule property and he argues that Gobinda
himself in his complaint filed against Ashok admitted that Ashok sold out
same portion to defendant no.1 and her husband and then to Gobinda.
Taking us to sketch maps of both the deeds of Ashok and deeds of
defendant no.1 and her husband wants to convince that same demarcated
portion was sold out to defendant no.1 and her husband and he contends
that actually, common passage was constructed on the northern side of the
'A' schedule property. He argues that 'A' schedule property cannot be held to
be partible. According to Mr. Roy, the learned Court below has made out a
third case and erroneously decreed the suit in preliminary form. To bolster
his submission, he placed reliance upon the judgments delivered in cases of
Rabi Kumar Dass & Ors. -vs- Chittaranjan Das & Ors. reported in 2006(4)
CHN 302, Labanya Bala Debi -vs- Parul Bala Debi & Ors. reported in AIR
1973 Cal 367.
9. In response, Mr. Bagchi, learned advocate for the respondent
argues that schedules and boundaries of deed by which Ashok purchased
from his father and of the deed by which Ashok transferred to defendant
no.1 and her husband are different and Gobinda and appellants are in
possession of the portions of the suit property. So, in the given situation,
partition is the only remedy and according to Mr. Bagchi that if it is found
that same portion has been sold out to appellants and Gobinda, then benefit
under Section 43 of Transfer of Property Act should be granted to both of
them by feeding their grants. He contends that insertion of word 'proposed'
in the boundary appended in the deed itself speaks that property was joint.
He asserts that learned Court below rightly directed partition of the suit
property leaving no scope to interfere with the same.
10. A close scrutiny of the judgment impugned will speak that the
learned Court held a specific demarcated portion was sold to Ashok by his
father but the boundary and the sketch map appended to that deed does not
resemble with the boundaries and sketch maps appended to deeds of
defendant no.1 and her husband since in the former deed, four feet wide
common passage was said to have been situated on the eastern side
whereas in the later deeds, four feet common passage was said to have been
situated on the northern side. Learned Court below held that at the time of
execution of deeds in favour of defendant no.1 and her husband, Ashok
inherited interest in 'B' schedule property along with other co-sharers
thereof. Learned Court below held that in given situation neither Section 48
nor Section 43 of Transfer of Property Act shall be applicable and although
Gobinda failed to prove that he acquired ownership of specific 'A' schedule
property but preponderance of probability suggests that Gobinda and
appellants were co-sharers along with others in respect of 'B' schedule
property.
11. Indisputably, by dint of one registered deed of sale vide. no. 184
dated 18.12.1989 (Ext.-1), Debendranath Banerjee sold out 0.04 decimals of
land to Ashok from R.S. plot no. 3356 incorporating measurement and
boundary in the deed in the following words:
On the north - 36'-6", R.S. Plot no. 3356 of Debendranath; On the
south - 53' land of 'C' block;
On the east - 39', R.S. Plot no. 3356 of Debendranath;
On the west - 39', proposed 4' ft. common passage.
Measurement and boundary of deed vide. no. 3295 dated
25.5.1999 whereby Arjun @ Ashok sold out 0.02 decimals of land
to husband of defendant no.1, namely, Shibdas Nayak speaks as
follows :
On the north- 18' - common passage;
On the south- 24'- House of Dipak Banerjee;
On the east - 39'- House of Sanjay Sen;
On the west - 39'- land of vendor.
Measurement and boundary of deed vide. no. 4605 dated
30.6.1999 whereby Arjun @ Ashok transferred 0.02 decimals of
land to defendant no. 1 speaks as follows:
On the north - 18'-6" - common passage;
On the south- 29'- house of Dipak Banerjee;
On the east- 35'- land of Shibdas Nayak;
On the west- 39'- land of Animesh Banerjee.
12. In the recital of deed vide. no. 184 a specific and demarcated
portion from 'B' schedule property was alienated to Ashok @ Arjun. It is
trite law that if one owner sells any specific portion with defined area and
boundary, then that portion cannot be part of other portion of the property
and hence, there cannot be unity of title and possession of 'A' schedule and
'B' schedule property. [See the case of Labanya Bala Debi (supra)].
13. Now, question is whether same portion was sold out to defendant
no.1 and her husband by Arjun @ Ashok.
14. In the recitals of deeds vide. nos. 3295 and 4605, Arjun @ Ashok
admittedly recited that he sold out the portion which he got from his father
by virtue of the deed vide. no. 184. Measurements mentioned in the deed
vide. no. 184 and measurement of deed vide. nos. 3295 and 4605 conjointly
resemble and/or tally with each other and only difference is that in the deed
vide. no. 184, proposed common passage was shown in the western side
whereas in other two deeds, which were executed almost after 10 years,
common passage was shown to have been situated on the northern side.
Neither of parties has asked for appointment of commissioner to ascertain
that proposed common passage was actually constructed on the western
side or on the northern side. However, in absence of any definite evidence,
no prudent man can hold that the proposal came into reality and common
passage was actually constructed on the western part of portion sold out to
Ashok @ Arjun by Debendranath and then to defendant no.1 and her
husband by Arjun @ Ashok. In the deed of Shibdas, on the western side, it
was mentioned that Ashok had his own land whereas in the deed of
defendant no.1, on the western side, land of Animesh Banerjee has been
mentioned which speaks that in the meantime, land lying on the western
side was acquired by Animesh Banerjee.
15. It is well-established principle that when there is inconsistency in
the body of the document containing evidence clause and the schedule, the
former prevails over the later. As such when the intention of the parties is
clear, the schedule or map or boundary to the document should not have
been allowed to override the recital clause and in this regard, reference can
be made to the judgment delivered in case of Narayana -vs- Kumaran,
reported in (2004) 4 SCC 26.
16. Intention of the author of the document shall be gathered from the
recital of the deed and from the recital of the deeds of Shibdas and
defendant no. 1, it is crystal clear that Ashok @ Arjun intended to alienate
the portion which Ashok got from his father and hence, such recital shall
prevail over the map or boundary.
17. Conjoint reading of the recitals of the deed vide. no. 184, recital of
deeds of Shibdas and defendant no. 1, complaint (Ext.-F) and pleadings and
evidence of respective parties suggests that the 'A' schedule property which
Arjun @ Ashok got from his father had been sold out to Shibdas and
defendant no.1 in 1999 and preponderance of probability suggests that
claim of appellants to the extent that although the common passage was
proposed to be constructed on the western side but in reality, it has been
constructed on the northern side appears to be probable and the learned
Court below committed mistake in not considering this aspect and from
the deed of Gobinda and from Ext.-F, it is evident that 'A' schedule property
has also been sold out to Gobinda in 2008 by Arjun @ Ashok.
18. Section 48 of Transfer of Property Act, 1882 (in short, T.P. Act)
provides that where a person purports to create by transfer at different
times rights in or over the same immovable property, and such rights
cannot all exist or be exercised to their full extent together, each later
created right shall, in the absence of a special contract or reservation
binding the earlier transferees, be subject to the rights previously created.
Section 48 of T.P. Act is based on a maxim- qui prior est tempore potior est
jure which means 'he who is prior in time is better in law'. When the same
property is transferred by the same person to different persons by different
documents, earlier transferee has priority over the subsequent transaction
of transfer. Hence, the transfer made in favour of Shibdas and defendant no.
1 shall prevail over the transfer made in favour of Gobinda.
19. In such sequence of facts, we have no qualm to hold that a
specific and demarcated portion from 'B' schedule property being the
property delineated in schedule-'A' was alienated to Shibdas and defendant
no. 1 and such 'A' schedule property cannot be part and parcel of 'B'
schedule property and 'A' schedule property is not partible amongst the co-
sharers of 'B' schedule property and appellants cannot be held to the co-
sharers with other co-sharers of 'B' schedule property.
20. Undoubtedly, Ashok @ Arjun has inherited share in 'B' schedule
property on demise of his father, Debendranath. Section 43 of T.P. Act lays
down that where a person fraudulently or erroneously represents that he is
authorised to transfer certain immovable property and professes to transfer
such property for consideration, such transfer shall, at the option of the
transferee, operate on any interest which the transferor may acquire in such
property, at any time during which the contract of transfer subsists but
nothing in this section shall impair the right of transferees in good faith for
consideration without notice of the existence of the said option.
21. Section 43 of T.P. Act is based on the principle of estoppel. Where
vendor sells without title in the property but subsequently acquires title,
then a right accrues to the purchaser to claim interest in the said property
and it can go in favour of the transferee if the transferee opts to acquire
interest therein.
22. Hence, if Ashok @ Arjun has any interest in 'B' schedule property,
Gobinda shall acquire interest to the extent of 0.0390 acres of land from the
share of Ashok @ Arjun lying in 'B' schedule property. 'B' schedule property
shall be deemed to be land comprising of an area of 64 decimals excluding
the portion of land transferred to the appellants. Liberty is granted to
Gobinda to claim such benefits, in accordance with law.
23. In the result, the appeal succeeds. Judgment and decree are set
aside. It is held that 'A' schedule property cannot come within the hotchpot
of the suit for partition and the suit in present form is dismissed. Parties
shall bear their own costs.
24. Let a decree be drawn up, accordingly.
25. Let a copy of this judgment along with LCR be sent down to the
learned Court below forthwith.
26. 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.)
