Calcutta High Court (Appellete Side)
Biplab Bose vs Mritunjoy Bose & Ors on 4 October, 2023
IN THE HIGH COURT AT CALCUTTA
(CIVIL APPELLATE JURISDICTION)
PRESENT:
THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY
S.A. 10 of 2023
CAN 1 of 2015
BIPLAB BOSE
VS.
MRITUNJOY BOSE & ORS.
For the Appellant : Mr. Rupak Ghosh, Adv.
Ms. Sanjukta Gupta, Adv.
Mr. Anujit Mukerjee, Adv.
For the Respondent No. 1 : Mr. Shankar Bhattacharyya, Adv.
Ms. Sudeshna Basu Thakur, Adv.
Hearing concluded on : 10th August, 2023
Judgement on : 4th October, 2023
Siddhartha Roy Chowdhury, J.:
1. This second appeal challenges the judgement passed by learned
Additional District Judge, 16th Court, Alipore, South 24 Parganas in Title
Appeal No. 117 of 2012 thereby affirming the judgement and decree
passed by learned Civil Judge (Senior Division) 9th Court, Alipore in Title
Suit No. 66 of 2011.
2. For the sake of convenience the parties will be referred to as they
were arrayed before the learned Trial Court.
3. Briefly stated, the plaintiff filed a suit for partition in respect of suit
property stating, inter alia, that Bibhuti Bhusan Bose, the original owner
of the property in suit is the grandfather of the parties to the proceeding.
During his lifetime Bibhuti Bhusan Bose executed a Will on 19th June,
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1957 by which he bequeathed his property to his wife Uma Rani Bose
with further direction that if Uma Rani Bose during her lifetime kept the
property with her, after the demise of Uma Rani 50% of the property
would go to the plaintiff and remaining 50% of the property would go to
Bimal Kanti Bose and Niva Rani Bose who are the son and daughter-in-
law of Bibhuti Bhusan Bose.
4. The said Will of Bibhuti Bhusan was probated by competent Court of
law in Probate Case No. 237 of 1977. However, during the said probate
proceeding Uma Rani Bose died intested and as directed in the Will 50%
of the property bequeathed by Bibhuti Bhusan Bose was given to the
plaintiff and remaining 50% was given to his parents.
5. After demise of parents, the plaintiff, along with his brothers and
sisters stepped into the shoes of their parents and acquired the 50%
share in the suit property jointly by way of inheritance. Having felt
difficulty in joint possession of the property, the plaintiff filed the suit for
partition seeking declaration as to his 60% share in the suit property the
share of defendants to the extent of 10% each and for final decree in
terms of preliminary decree.
6. The defendants contested the suit by filing separate written
statement denying all material allegations made in the plaint. The
defendant no. 1 in his written statement admitted the contention of the
plaintiff made in paragraph 1. It is contended by the plaintiff :-
"1) All that premises No. 60/8, Maharaja Ragore Road, P.S.
Jadavpur, Ward No. 92, Kolkata-700031, District South 24
Parganas Land measuring 2 Cottahs 9 Chittaks 30 Sq. ft. more
or less together with structure standing thereon purchased by
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Bibhuti Bhusan Bose during his life time and thereafter he
renovated and converted one storied pucca building on the
said plot of land by his own fund and had been living in the
said premises with his family members as an absolute owner
and said Bibhuti Bhusan Bose, the grandfather of the plaintiff
and the defendants, died on 20.10.1971"
In answer to that defendant no. 1 says :-
"That the statements made in para no. 1 of the plaint are
admitted by the Defendant. It is a fact that Bibhuti Bhusan
Bose was the owner of the property comprising in the premises
no. 60/8, Maharaja Tagore Road, Police Station- Jadavpur,
Kolkata-700 031, in Ward no. 92."
But the defendant denied the claim of the plaintiff that he has
acquired 60% of share in the suit property. Defendant no. 1 expressed his
ignorance about the factum of execution of Will by his grandfather
Bibhuti Bhusan Bose. According to defendant the property should be
partitioned in equal share amongst the plaintiff and defendants.
7. Learned Trial Court after considering the evidence on record was
pleased to dismiss the suit on the ground that the plaintiff failed to
produce any document as to the ownership of the property, probate
granted to the last Will of Bibhuti Bhusan Bose is not a document of title
and title cannot be conferred on the basis of admission. Aggrieved
plaintiff made an unsuccessful attempt to get the judgement of learned
Trial Court reversed by preferring Title Appeal No. 117 of 2012. Learned
First Appellate Court accepted the view of learned Trial Court and was
pleased to dismiss the appeal.
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8. The second appeal is admitted on the following question of law :-
1. Whether the learned judges in the courts below,
substantially, erred in law in dismissing the suit for
partition due to non-availability of the original document of
title showing acquisition of the property-in-suit by the
grandfather of the parties, namely, Bibhuti Bhusan Bose,
when the parties did not raise such question and the
learned judges failed to appreciate that in view of provisions
of Section 58 of the Indian Evidence Act, 1972 facts
admitted need not be proved?
2. Whether the learned judges in the courts below,
substantially, erred in law in not recognizing the right of the
plaintiff by virtue of the probated will inasmuch as once the
probate is obtained, legatees under the will are entitled to
assert their right on the strength of such probate as the
order of the probate court is a judgment in rem and binding
on all concerned?
9. Assailing the impugned judgement Mr. Rupak Ghosh, learned
Counsel for the appellant submits that the plaintiff filed the suit for
partition with the assertion that Bibhuti Bhusan Bose was the original
owner of the property who during his lifetime executed a Will and the last
Will of Bibhuti Bhusan Bose was probated and the plaintiff acquired half
of the property in terms of the said Will duly, probated by the competent
Court of law.
10. Exhibit-1 is the Probate certificate together with copy of Will.
Drawing my attention to the pleadings of defendant no. 1 it is submitted
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by Mr. Ghosh that the defendant has admitted the assertion of plaintiff as
to the ownership of Bibhuti Bhusan Bose in respect of the property. The
defendant even claimed 1/5 share in the suit property, originally owned
by Bibhuti Bhusan Bose. Therefore, learned Trial Court had no occasion
to decide the issue touching the ownership of Bibhuti Bhusan Bose in
respect of the suit property. But learned Trial Court dismissed the suit on
the ground that no document was produced to substantiate such claim.
According to Mr. Ghosh when the parties are not at issue learned Trial
Court ought to have acted upon such admission.
11. Mr. Ghosh further adverted that learned First Appellate Court
committed error in endorsing the view of learned Trial Court. The
document Exhibit-1 is the Probate of the Will and the judgement in the
proceeding of Will is a judgement in rem which binds the entire world. To
buttress his point Mr. Ghosh relies upon the judgement of Hon'ble
Supreme Court in the case of Sri Satyendra Nath Roy (deceased)
substituted by Smt. Aruna Roy & Ors. vs. Smt. Chhabi Rani Mundra
reported in (1996) 2 Cal LT 467 and in the case of Kanwarjit Singh
Dhillon vs. Hardayal Singh Dhillon & Ors. reported in AIR 2008 SC
306.
12. Refuting such contention of Mr. Ghosh, Mr. Shankar Bhattacharyya,
learned Counsel for the respondent no. 1 submits that though Bibhuti
Bhusan Bose was the original owner of the suit property but the onus
was upon the plaintiff to prove the fact but the plaintiff failed to produce
any paper to substantiate such claim. Therefore, learned Trial Court as
well as learned First Appellate Court had no other alternative but to
dismiss the suit.
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13. Section 58 of the Evidence Act, according to Mr. Bhattacharyya has
no manner of application in proving the title of Bibhuti Bhusan Bose.
Title of an immovable property has to be proved by tendering
documentary evidence. Title cannot pass by way of admission. In support
of his contention Mr. Bhattacharyya relies upon the decisions of Hon'ble
Supreme Court in the case of AMBIKA PRASAD THAKUR & ORS. VS.
RAM IQBAL RAI reported in AIR 1966 SC 605, wherein it is held :-
"13. On the question of title also, the plaintiffs must fail. In the
plaint, the basis of their claim of title was (a) occupation of 426
bighas 18 khatas and 9 dhurs of Dubha Taufir by their ancestor
Naurang Thakur as occupancy tenant and the record of his
rights in the survey papers of 1892 and (b) the oral arrangement
with the Dumraon Raj. The first branch of this claim is obviously
incorrect. The survey papers of 1892 do not record occupancy
tenancy rights of Naurang Thakur in 426 bighas 18 kathas and
9 dhurs. In the High Court, counsel for the plaintiffs conceded
that in the Khasra of 1892-1893 survey the plaintiffs' branch
was recorded as tenant for about 19 bighas only. The oral
arrangement is not established, and the second branch of this
claim also fails. The Subordinate Judge did not examine the
basis of the plaintiffs claim of title. His finding in favour of the
plaintiffs' title was based chiefly on (1) oral evidence,
(2)depositions of witnesses in previous litigations, (3)
possession, (4) an admission of the Maharaja. The oral evidence
on the point is not convincing. The claim is not supported by the
documentary evidence. The survey papers of 1892, 1895,1904,
1909 and 1937 do not support the plaintiffs' claim of occupancy
rights in the lands in suit. The depositions of witnesses in other
litigations do not carry the matter further. The deposition of
defendant No. 11. Ram Dass Rai, in Suit No. 217of 1911 is of
weak evidentiary value. Though admissible against him as an
admission, it is not admissible against the other defendants.
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The other depositions relied upon do not satisfy the test of S. 33
of the Indian Evidence Act, and are not admissible in evidence.
We have already found that the plaintiffs and their ancestors
were not in possession of the disputed land since 1909. The oral
evidence as to their possession before 1909 is not convincing,
and we are not inclined to accept it. The documentary evidence
does not support the story of their possession before 1909. With
regard to the admission of the Maharaja in Suit No. 247/10 of
1913 relating to the plaintiffs' title to 244 bighas, we find that in
his written statement the maharaja asserted his khas zeraiti
rights and denied the alleged guzashta kastha rights of the
plaintiffs' ancestors. It seems that in Bihar 'guzashta kasht'
means a holding on a rent not liable to enhancement. Later, on
June 10, 1913, a petition was filed on his behalf stating that the
plaintiffs' ancestors were tenants in occupation of the disputed
land having guzashta kasht right. The Maharaja was interested
in the success of the suit, and it was necessary for him in his
own interest to make this admission. The admission was made
under somewhat suspicious circumstances at the end of the trial
of the case when the arguments had begun. Though this petition
was filed, the written statement of the Maharaja was never
formally amended. In the circumstances, this admission has
weak evidentiary value. In this suit the plaintiffs do not claim
tenancy right either by express grant or by adverse possession.
Title cannot pass by mere admission. The plaintiffs now claim
title under Cl. (1) of S. 4 of Regulation XI of 1825. The evidence
on the record does not establish this claim."
14. Mr. Bhattacharyya also relies upon the judgement of Hon'ble
Supreme Court in the case of CHIRANILAL SHRILAL GOENKA
(DECEASED) THROUGH LRS. VS. JASJIT SINGH & ORS. reported in
(1993) 2 SCC 507 wherein it is held :-
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"15. In Ishwardeo Narain Singh v. Smt. Kanta Devi & Ors.,
AIR 1954 SC 280 this court held that the court of probate is
only concerned with the question as to whether the document
put forward as the last will and testament of a deceased
person was duly executed and attested in accordance with
law and whether at the time of such execution the testator
had sound disposing mind. The question whether a particular
bequest is good or bad is not within the purview of the
Probate Court. Therefore the only issue in a probate
proceeding relates to the genuineness and due execution of
the Will and the court itself is under duty to determine it and
preserve the preserve the original Will in its custody. The
Succession Act is a self-contained code in so far as the
question of making an application for probate, grant or refusal
of probate or an appeal carried against the decision of the
probate court. This is clearly manifested in the fascicule of the
provision of Act. The probate proceedings shall be conducted
by the probate court in the manner prescribed in the Act and
in no other ways. The grant of probate with a copy of the Will
annexed establishes conclusively as to the appointment of the
executor and the valid execution of the will. Thus it does no
more than establish the factum of the will and the legal
character of the executor. Probate court does not decide any
question, of title or of the existence of the property itself."
15. In Chiranilal Shrilal Goenka (supra) Hon'ble Apex Court held :-
"3. The grant of Probate by a Court of competent jurisdiction is in
the nature of a proceeding in rem. So long as the order remains
in force it is conclusive as to the due execution and validity of
the will unless it is duly revoked as per law. It binds not only
upon all the parties made before the Court but also upon all
other persons in all proceedings arising out of the Will or claims
under or connected therewith. The decision of the Probate Court,
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therefore, is the judgment in rem. The probate granted by the
competent court is conclusive of the validity of the Will until it
is revoked and no evidence can be admitted to impeach it
except in a proceeding taken for revoking the probate. [465D]
Slieoparsan Singh v. Ramnandan Prasad Singh, (1916) ILR 43
Cal. 694 PC and Narbharam Jivram v. Jayvallabh Harjiwan,
AIR 1933 Bom. 469, approved. [465E-F]"
16. True it is that title cannot pass by way of admission. But at the same
time we should not be obvious of the fact that this is not a straight jacket
formula. In Ambika Prasad Thakur (supra) the dispute of title arose in
respect of a property where one of the parties filed the suit for recovery of
possession. The evidence would suggest that there was an admission as
to the title but no document was produced. The learned Trial Court held
the plaintiff to be the owner of the property based on oral evidence,
deposition of witnesses in previous litigations, possession and an
admission. Hon'ble Apex Court in the said judgement was pleased to hold
that the admission was made under somewhat suspicious circumstances
at the end of the trial when the argument had begun. The fact of the case
at hand, however, is different from that of the fact in Ambika Prasad
Thakur (supra). Therefore cannot be used as precedent.
17. Here in this case, learned Courts below concurrently observed that
title cannot be considered on the basis of admission, ignoring the
pleading of defendant acknowledging Bibhuti Bhusan Bose as the original
owner of the suit property.
18. In this backdrop, I consider it expedient to understand what is
admission and impact of admission in pleading and evidence.
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19. Admission is defined under Section 17 of the Evidence Act, 1872. It
says :-
"17. Admission defined. - An admission is a statement, oral or
documentary 30[or contained in electronic form], which suggests
any inference as to any fact in issue or relevant fact, and which
is made by any of the persons, and under the circumstances,
hereinafter mentioned."
20. Section 18 of the Evidence Act, 1872 says :-
"18. Admission by party to proceeding or his agent.--Statements
made by a party to the proceeding, or by an agent to any such
party, whom the Court regards, under the circumstances of the
case, as expressly or impliedly authorized by him to make them,
are admissions. by suitor in representative character.--
Statements made by parties to suits, suing or sued in a
representative character, are not admissions, unless they were
made while the party making them held that character.
Statements made by--
(1) party interested in subject-matter.--persons who have
any proprietary or pecuniary interest in the subject-matter
of the proceeding, and who make the statement in their
character of persons so interested, or
(2) person from whom interest derived.--persons from
whom the parties to the suit have derived their interest in
the subject-matter of the suit, are admissions, if they are
made during the continuance of the interest of the persons
making the statements."
21. Admission is a voluntary acknowledgement made by a party of
existence of truth of certain facts. It is of two kinds - admission in
pleading and evidentiary admission. Admission in pleading is judicial
admission.
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22. The legislative mandate as laid down under Section 58 of the
Evidence Act which says :-
"Section 58 in The Indian Evidence Act, 1872
58 Facts
admitted need not be proved. --No fact need to be
proved in any proceeding which the parties thereto or their
agents agree to admit at the hearing, or which, before the
hearing, they agree to admit by any writing under their hands,
or which by any rule of pleading in force at the time they are
deemed to have admitted by their pleadings: Provided that the
Court may, in its discretion, require the facts admitted to be
proved otherwise than by such admissions."
23. Now let us re-visit the relevant provisions as laid down under Order
VIII Rule 5,Order X ,Order XV,and Order XII Rule 6 of the Code of Civil
Procedure.
24. Order VIII Rule 5 of the Code of Civil Procedure enunciates :-
"5. Specific denial.--1 [(1)] Every allegation of fact in the plaint, if
not denied specifically or by necessary implication, or stated to
be not admitted in the pleading of the defendant, shall be taken
to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so
admitted to be proved otherwise than by such admission:
*[Provided further that every allegation of fact in the plaint, if not
denied in the manner provided under Rule 3A of this Order,
shall be taken to be admitted except as against a person under
disability.]
[(2) Where the defendant has not filed a pleading, it shall be
lawful for the court to pronounce judgment on the basis of the
facts contained in the plaint, except as against a person under a
disability, but the Court may, in its discretion, require any such
fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or
under sub-rule (2), the Court shall have due regard to the fact
whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree
shall be drawn up in accordance with such judgment and such
decree shall bear the date on which the judgment was
pronounced."
25. Order X of the Code of Civil Procedure says :-
"1.Ascertainment whether allegations in pleadings are admitted
or denied.--At the first hearing of the suit the Court shall
ascertain from each party or his pleader whether he admits or
denies such allegations of fact as are made in the plaint or
written statement (if any) of the opposite party, and as are not
expressly or by necessary implication admitted or denied by the
party against whom they are made. The Court shall record such
admissions and denials.
[1A. Direction of the court to opt for any one mode of alternative
dispute resolution.--After recording the admissions and denials,
the court shall direct the parties to the suit to opt either mode of
the settlement outside the court as specified in sub-section (1) of
section 89. On the option of the parties, the court shall fix the
date of appearance before such forum or authority as may be
opted by the parties.
1B. Appearance before the conciliatory forum or authority.--
Where a suit is referred under rule 1A, the parties shall appear
before such forum or authority for conciliation of the suit.
1C. Appearance before the court consequent to the failure of
efforts of conciliation.--Where a suit is referred under rule 1A,
and the presiding officer of conciliation forum or authority is
satisfied that it would not be proper in the interest of justice to
proceed with the matter further, then, it shall refer the matter
again to the court and direct the parties to appear before the
court on the date fixed by it.]
[2. Oral examination of party, or companion of party.--(1) At the
first hearing of the suit, the Court--
(a) shall, with a view to elucidating matters in controversy in the
suit examine orally such of the parties to the suit appearing in
person or present in Court, as it deems fit; and
(b) may orally examine any person, able to answer any material
question relating to the suit, by whom any party appearing in
person or present in Court or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally examine
any party appearing in person or present in Court, or any
person, able to answer any material question relating to the
suit, by whom such party or his pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course of an
examination under this rule questions suggested by either
party.]"
26. Order XV of the Code of Civil Procedure says :-
1. Parties not at issue.--
(1) Where at the first hearing of a suit it appears that the parties
are not at issue on any question of law or of fact, the Court may
at once pronounce judgment. 2. One of several defendants not at
issue.
2 [(1) Where there are more defendants than one, and any one of
the defendants is not at issue with the plaintiff on any question
of law or of fact, the Court may at once pronounce judgment for
or against such defendant and the suit shall proceed only
against the other defendants.
(2) Whenever a judgment is pronounced under this rule, decree
shall be drawn up in accordance with such judgment and the
decree shall bear the date on which the judgment was
pronounced.
3. Parties at issue.--(1) Where the parties are at issue on some
question of law or of fact, and issues have been framed by the
Court as hereinbefore provided, if the Court is satisfied that no
further argument or evidence that the parties can at once
adduce is required upon such of the issues as may be sufficient
for the decision of the suit, and that no injustice will result from
proceeding with the suit forthwith, the Court may proceed to
determine such issues, and, if the finding thereon is sufficient
for the decision, may pronounce judgment accordingly, whether
the summons has been issued for the settlement of issues only
or for the final disposal of the suit: Provided that, where the
summons has been issued for the settlement of issues only, the
parties or their pleaders are present and none of them objects.
(2) Where the finding is not sufficient for the decision, the Court
shall postpone the further hearing of the suit, and shall fix a day
for the production of such further evidence, or for such further
argument as the case requires.
4. Failure to produce evidence.--Where the summons has been
issued for the final disposal of the suit and either party fails
without sufficient cause to produce the evidence on which he
relies, the Court may at once pronounce judgment, or may, if it
thinks fit, after framing and recording issues, adjourn the suit
for the production of such evidence as may be necessary for its
decision upon such issues."
27. Order XII (6) of the Code of Civil Procedure enunciates :-
"6. Judgment on admissions.--
(1) Where admissions of fact have been made either in the
pleading or otherwise; whether orally or in writing, the Court
may at any stage of the suit, either on the application of any
party or of its own motion and without waiting for the
determination of any other question-between the parties, make
such order or give such judgment as it may think fit, having
regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a
decree shall be drawn up in accordance with the judgment and
the decree shall bear the date on which the judgment was
pronounced."
28. The provisions as aforesaid demonstrate that judgement can be
passed even on admission. If at the time of first hearing of the suit under
Order X of the Civil Procedure Code, it is found that parties are not at
issue judgement can be pronounced under Order XV Rule 1 of the Code
of Civil Procedure. Order XII Rule 6 of the Code of Civil Procedure is other
prescribed procedure to pronounce judgement on admission. If these
provisions are followed, the proceeding in suit shall be short-lived.
29. Here the defendant in the written statement not only admitted the
contention of the plaintiff in paragraph 1 of the plaint as to the ownership
of Bibhuti Bhusan Bose but also claimed 1/5th share over the property
owned by their grandfather Bibhuti Bhusan Bose stating, inter alia, that
he was unaware of any Will. Therefore, the judgement pronounced in
Ambika Prasad Thakur (supra) is of no help to the defendants.
30. Judgement pronounced in a Probate proceeding is a judgement in
rem .Section 41 of the Evidence Act, 1872 enunciates :-
"41. Relevancy of certain judgments in probate, etc.,
jurisdiction.--A final judgment, order or decree of a competent
Court, in the exercise of probate, matrimonial admiralty or
insolvency jurisdiction which confers upon or takes away from
any person any legal character, or which declares any person to
be entitled to any such character, or to be entitled to any specific
thing, not as against any specified person but absolutely, is
relevant when the existence of any such legal character, or the
title of any such person to any such thing, is relevant. Such
judgment, order or decree is conclusive proof-- that any legal
character, which it confers accrued at the time when such
judgment, order or decree came into operation; that any legal
character, to which it declares any such person to be entitled,
accrued to that person at the time when such judgment, 1[order
or decree] declares it to have accrued to that person; 3[order or
decree] declares it to have accrued to that person;" that any legal
character which it takes away from any such person ceased at
the time from which such judgment, 1[order or decree] declared
that it had ceased or should cease; 3[order or decree] declared
that it had ceased or should cease;" and that anything to which
it declares any person to be so entitled was the property of that
person at the time from which such judgment, 1[order or decree]
declares that it had been or should be his property. 3[order or
decree] declares that it had been or should be his property."
31. Probate was granted in the year 1991 and there was no proceeding
for its revocation. Executor of the Will was the daughter of the testator
and there is every reason to presume that she has discharged her
obligation by distributing the property among the legaties, in accordance
with the pious desire of the testator. Thus the plaintiff appears to have
acquired the property by way of testamentary succession. The document,
Exhibit-7 is lending support to this fact as the plaintiff has got his name
mutated as assessee in respect of the property in suit.
32. In NAGINDAS RAMDAS VS. DALPATRAM ICHHARAM & ORS.
reported in AIR 1974 SC 471 Hon'ble Apex Court held :-
"Admissions, if true and clear, are by far the best proof of the
facts admitted. Admissions in pleadings or judicial admissions,
admissible under Section 58 of the Evidence Act, made by the
parties or their agents at or before the hearing of the case, stand
on a higher footing than evidentiary admissions. The former
class of admissions are fully binding on the party that makes
them and constitute a waiver of proof. They by themselves can
be made the foundation of the rights of the parties On the other
hand, evidentiary admissions which are receivable at the trial
as evidence, are by themselves, not conclusive. They can be
shown to be wrong."
33. Learned Courts below failed to appreciate this provision of law
relating to admission and consequence thereof. Here in this case, parties
have been claiming right ,title and interest over the property originally
owned by their grandfather Bibhuti Bhusn Ghosh ,the only dispute is the
extent of share of the parties in the property. Learned Courts below could
not have dismissed the suit on the ground that the ownership of Bibhuti
Bhusan Bose was not established by document.
34. Therefore, in my humble opinion, learned First Appellate Court
committed error in dismissing the appeal and thereby affirming the
judgement of learned Trial Court. The impugned judgement, therefore,
should not be allowed to remain in force. Consequently, the appeal
succeeds. The judgement impugned is set aside. The judgement passed
by learned Trial Court consequently is also set aside. The suit stands
decreed in the preliminary form as aforesaid.
35. Consequent upon the grant of probate by the competent Court of
law, the plaintiff has acquired ½ share in the suit property by way of
testamentary succession and also acquired 1/5th of the remaining half
share from his parents by way of inheritance and the defendants have
acquired 1/5th of the ½ share each by way of inheritance from their
parents or in other words plaintiff acquired total 60% share in the suit
property and the defendants jointly have acquired 40%.
36. The parties are directed to get the property amicably partitioned by
metes and bounds, maintaining their respective possession as far as
practicable within 2 months, failing which the parties will at liberty to
approach the learned Trial Court to appoint Pleader Commissioner or an
expert having knowledge in survey, in the panel of the Court, to effect
partition by metes and bounds in terms of the preliminary decree and to
draw final decree. Consequently, the appeal is allowed. The judgement
passed both in Title Suit No. 66 of 2011 and Title Appeal No. 117 of 2012
are set aside. Pending application is also stands disposed of.
37. The department is directed to draw up decree within 15 days from
the date and send down the lower Court record along with copy of
judgement to the learned Trial Court.
38. Urgent photostat certified copy of this judgement, if applied for,
should be made available to the parties upon compliance with the
requisite formalities.
39. Every litigant has the right to have justice expeditiously. Trial Courts,
adjudicating civil dispute, therefore, should remain alive to the
procedures as laid down in the Code of Civil Procedure, and use the
procedural law as effective tools to secure speedy justice. Provision of
Order X of the Code of Civil Procedure is one such basic and effective
avenue to tread upon, to secure the goal for dispensation of justice
expeditiously, which must be followed scrupulously and in appropriate
cases trial court should invoke the provision of Order XV or Order XII
Rule 6 of the Code of Civil Procedure to shorten the lifespan of litigation.
40. Learned Registrar General is directed to circulate the copy of the
judgement to all the members of the District Judiciary, for information
and compliance.
(SIDDHARTHA ROY CHOWDHURY, J.)
