Calcutta High Court (Appellete Side)

Kasim & Ors vs Usman Ali & Ors on 18 October, 2023

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION

PRESENT:

THE HON'BLE JUSTICE HARISH TANDON
And
THE HON'BLE JUSTICE PRASENJIT BISWAS

FA 50 of 2016

Kasim & Ors.
Vs.
Usman Ali & Ors

Judgment on : 18.10.2023

Prasenjit Biswas, J:-

1. It is admitted position to the fact that RS recorded tenants were the original

owners in respect of the suit properties and the genealogy of their heirs are

also admitted.

2. It is stated by the defendants/appellants that the property originally belonged

to Baona Singha and Vatak Singha in equal share and out of 6.44 acres of

land they got eight anas share each. Baona Singha died leaving behind

Dhuleswari Singha and Fuleswari Singha and those two daughters of Baona

Singha got 0.55 acres of land. Thereafter, Vatak purchased 0.55 acres of land

each from the said two daughters. Accordingly Vatak Singha became owner of

4.32 acres of land in respect of plot no 864 and 869.

3. Thereafter, Vatak sold 3.11 acres of land in total to differe nt purchasers by

registered deed of sale. After these sales 1.21 acres of land remained with
2

Vatak which his heirs got by way of inheritance. Those heirs of Vatak Singha

sold from their shares to different persons by dint of registere d deeds of sale to

Amir Hossain, Afjal and Munsad Ali. Defendant no.5 Amir Hossain also

purchased from the son Mejo Kumar Singha and wife Bela Devi and daughter

Saoni Devi by registered deeds of sale being no. 27512003 and 4492004

measuring 1.16 acre of land. So, Vatak Sangha had remained with 0.05 acres

of land.

4. Sons Mejo Kumar Singha, Basanta Kumar Singha Lalit Singha and daughter

Saoni Devi sold 0.51 acres of land to the plaintiff Usman Ali by deed of sale

being No. 837/2007 although they had saleable right to the extent of 0.05 acre

of land. The submission of the learned Advocate of the appellant is that the

plaintiff is entitled to get 0.05 acre of land.

5. It is profitable to quote the observation rendered by the Hon'ble Apex Court in

Paragraphs 21, 22 and 24 in case of R. Mahalakshmi vs A.V. Anantharaman

and Others reported in (2009) 9 SCC 52

"21. The abovesai d legal position has not been disputed

seriousl y by the learned counsel for the respondents. But the

question is whether all the properties left behind by late A.V.

Venkataraman were included in the plaint for partition or not.

Critical examination of the registered deed of partition would

show that all the i mmovable properties inherited by late A.V.

Venkataraman were not included in the sui t filed by

Respondent 1. The courts below commi tted grave error in

coming to the conclusion that the appellant has not disclosed,

with documentary proof with regard to the other properties

inherited by her late father.

22. In the light of the partition deed available on record, no

further proof thereof was required, more so, when the plaintiff

himself relied on the same. According to us, this aspect of the

matter has not been considered by the courts below. Thus,

after having considered the submissions of the learned counsel

for the parties and after perusal of the records, we are of the

considered opinion that the matter deserves to be remanded to

the trial court on the following grounds:

i. That all the properties that were inheri ted by the father of

the parties by virtue of registered deed of parti tion dated 27-4-

1954 have not been included in the partition suit.

ii. The appellant herein had taken a consistent stand right

from the very beginning that unless all the properties are

included in the plaint, the sui t would be bad and partial

partition cannot be effected.

24. In the light of the foregoing observations, the judgment and

decree passed by the courts below are hereby set aside and

quashed. The matter is remi tted to the trial court for gi ving

opportunity to the parties to amend their respecti ve pleadings,

to file additional documents and to lead further evidence in

support of the amended pleadings. The trial court thereafter

would pass a judgment after appreciating the addi tional

pleadings and the evidence adduced thereon."

6. The above referred case of R. Mahalakshmi (supra) Hon'ble Apex Court

observed that as all the properties inherited by the father of the parties were

not included in the partition suit then it would be bad and partial partition

cannot be effected. As a result the matter deserves to be remanded to the trial

court.

7. In a suit for partition or separation of a share, the prayer is not only for

declaration of plaintiff's share in the suit properties, but also division of his

share by metes and bounds. In a suit is for partition or separation of a share,

the court at the first stage decides whether the plaintiff has a share in the suit

property and whether he is entitled to division and separate possession. The

decision on these two issues is exercise of a judicial function and results in

first stage decision termed as `decree' under Order 20 Rule 18(1) and termed

as `preliminary decree' under Order 20 Rule 18(2) of the Code. The

consequential division by metes and bounds, considered to be a ministerial or

administrative act requiring the physical inspection, measurements,

calculations and considering various permutations/

combinations/alternatives of division. Partition' is a re -distribution or

adjustment of pre-existing rights, among co-owners/coparceners, resulting in

a division of lands or other properties jointly held by them, into different lots

or portions and delivery thereof to the respective allottees. The effect of such

division is that the joint ownership is terminated and the respective shares

vest in them in severalty. A partition of a property can be only among those

having a share or interest in it. A person who does not have a share in such

property cannot obviously be a party to a partition. `Separation of share' is a

species of 'partition'.

8. It is a matter of common knowledge that in a suit for partition, the important

aspects to be undertaken by the Court are ascertainment of the shares,

identification of the property available for partition, division of the available

property by metes and bounds and allotment of the divided parts to the

parties, commensurate with their shares. The impugned judgement and decree

has not indicated the shares of the parties. The trial court only st ated that the

plaintiff has a share in the 'kha' schedule property. In a suit for partition it is

necessary for the court to delineate the shares of the plaintiffs and the

defendants which has not been done by the trial court in the instant case. It is

the general rule that partition suit should embrace all joint property ensures a

just partition, otherwise parties might be greatly prejudiced as regards

equitable distribution or sale. It is brought to our notice at the time of hearing

that all the properties of the above mentioned two R.S. Recorded tenants were

not brought into the hotchpot for parition

9. In the light of above discussion the judgement and decree passed by the

learned Trial Court is hereby set aside and quashed. The matter is remitted to

the trial court on the following grounds-

"That all the properties of the original R.S. Recorded tenants

have not been included in the parti tion sui t."

"The impugned judgement and decree has not indicated the

shares of the defendants. The trial court onl y stated that the

plaintiff has a share in the kha schedule property as described

in the plaint."

10. The trial court should give opportunity to the parties to amend their respective

pleadings, to file additional documents and to lead further evidence in support

of the amended pleadings if they wish. The Trial Court thereafter would pass a

judgement after appreciating the additional pleadings and evidences adduced

thereon keeping the evidences already adduced in the record.

11. The appeal thus stands allowed to the extent mentioned hereinabove, looking

to the facts of the case, the parties to bear their respective costs.

12. Let the lower court be sent down immediately through special messenger at

the cost of the appellant.

13. Both the sides shall accordingly appear before the Learned Trial Court for

further necessary order.

14. Urgent Photostat certified copies of this judgment, if applied for, be made