Bimal Chandra Mondal @ Atul vs Bikash Chandra Mondal
2022 Latest Caselaw 1812 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 First Appeal No. 137 of 2012
1. Bimal Chandra Mondal @ Atul
2. Bimal Mondal                                    ....    .... Appellants

                              Versus

1. Bikash Chandra Mondal
2. Arun Naskar
3. Ashok Naskar
4. Sapan Naskar
5. Sandhya Rani Sinha
6. Bhagwati Devi
7. Niva Rani
8. Meera
9. Shikha @ Nantu
10.Deepika @ Kuku
11.Piyali
12.Pradeep Mondal
13.Sandeep Mondal
                                                  ....    ....   Respondents
                              ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants      : M/s Indrajit Sinha & Shishir Suman, Advocates
For the Respondents     : M/s Pandey Neeraj Rai, R.R. Sinha
                         & Amrit Sinha, Advocates
C.A.V. ON 02.03.2022                   PRONOUNCED ON 05 / 05 / 2022

1. The appellants are the defendants nos.1 & 2 who have preferred the appeal against the judgment and decree passed by the Senior Civil Judge-III, Jamshedpur in Title (Partition) Suit No. 113 of 2008 whereby and whereunder, the suit of the plaintiffs has been decreed for 1/5th share in the property detailed in Schedules-A and B of the plaint.

2. The parties will be referred by their original placement in the suit and shall include their legal representatives substituted at different stages.

3. Plaintiff Bikash Chandra Mondal filed the suit for partition of 1/5th Schedules-A and B property fully detailed in the plaint.

4. The plaintiffs' case in brief is that both the parties are the sons of A.C. Mondal who died on 30.10.1976 leaving behind the following heirs and successors:

A.C. Mondal - Died

(Wife) Taru Bala Devi - Died

Son-1 Son-2 Son-3 Son-4 Son-5 Son-6 Son-7 Arbind Bimal Satish Bimal Bimal Amal Bikash Chandra Naskar Chandra Ch. Mondal Chandra Chandra Mandal Died Das Mondal (P2) Mondal Mondal Died Died (P1) Died

5. The schedule land was allotted by the landlord M/s TISCO Limited, Jamshepdur to Late A.C. Mondal bearing Holding No. C/3A situated at Jamshedpur. Defendant nos. 1 and 2 are living in the same premises and defendant no. 1 had constructed some rooms without a formal partition. One of the sons of A.C. Mondal namely, Amal Chandra Mondal, died unmarried on 13.09.2004 and another son Satish Chandra Das died on 09.02.1981 and his wife Chhaya Rani left her house for ever and is traceless since then. A.C. Mondal died on 30.10.1976. The request for partition remained unheeded. Hence the present suit.

6. The main contesting defendants are defendant nos. 1 and 2 namely, Bimal Chandra Mondal @ Atul and Bimal Mondal @ Botu. They have filed the joint written statement and contested the suit. It is averred that the plaintiffs had constructed double storey premises which is in their possession without any partition between the brothers of the plaintiffs and now they want to construct the double storey on the side of defendant no.

1. There was no occasion for demanding partition since both the parties were living separately in the portion of the house. It has not been admitted that Chhaya Rani, widow of Satish Chandra Das is not alive. With regard to the genealogy, it is averred that A.C. Mondal had only six sons and Bimal Naskar was not the son of A.C. Mondal. It is further contended that detail of total property of A.C. Mondal has not been disclosed. The property of the deceased left behind in the State of West Bengal has been fully detailed as paragraph 26 of the written statement. It is also contended that the plaintiffs purchased one residential flat situated at Mauza Sonari and the name of the flat is Shanti Vihar Apartment bearing No. C/26

measuring an area 750 Sq. Ft. This property has been purchased from the sale prices of 8 Kathas land at Nawapara.

7. Defendant nos. 3, 4 and 6 have filed their joint written statement and other defendants in their written statement have admitted the case of the plaintiffs. Defendants nos. 5 & 7 and defendants nos. 8 to 15 have supported the case of the plaintiffs by filing their joint written statement.

8. On the basis of the pleadings of the parties, the following issues have been framed in the trial court:

I. Whether the suit as framed is maintainable in its present form?

II. Whether the plaintiff has valid cause of action for the suit?

III. Whether the suit is bad for non-joinder of necessary parties?

IV. Whether there is unity of title and unity of possession in between the parties to the suit?

V. Whether late A.C. Mandal, common ancestor of the parties died leaving behind six or seven sons?

VI. Whether schedule properties are liable to be partitioned amongst the parties to the suit, if so what would be the extent of the share of plaintiffs and the defendants.

VII. Whether the plaintiffs are entitled to the relief as claimed for in the suit?

VIII. To what relief or other reliefs the plaintiffs are entitled to?

9. The suit has been decreed by the trial Court by recording the following findings :

i. Issue No. V - Chhaya Rani the widow of Satish Das has not been seen since last 30 years an onus to prove that she was alive was on the defendants who claims to be so. Defendant no.1 has himself deposed in para - 24 of his cross examination that he was entitled to 1/5 share in the disputed property. Meaning thereby he acknowledged that there were only five claimants.

ii. Issue Nos. IV & VI-- It is the admitted fact that property belongs to the father late A.C. Mandal and it was also admitted fact that suit

property had not been partitioned. The plaintiffs and each of the co- sharer were entitled to get 1/5 share in the property in schedule A and B.

iii. Issue No. III-- The suit was not bad for non-joinder of necessary party. Chhaya Rani was not heard for last 30 years so she was not alive in the view of the presumption under Section 107 of the Evidence Act.

10. The appeal has been preferred mainly on the ground that one residential flat no. C/26 situated at mauza Sonari, Shanti Vihar apartment was obtained by the plaintiffs from consideration arising out of the disposal of 8 Kathas of land situated at mauza Nawapara and as such the same also requires to be the subject matter of the partition suit.

11. The main point for determination in the present appeal is,

Firstly, whether the suit is bad for non-joinder of necessary party by not impleading Chhaya Rani?

Secondly, whether the suit is not maintainable in its present form as the entire suit property has not been included in the schedule of the plaint?

12. Plaintiff's definite case is that Chhaya Rani was traceless and was not heard for more than 30 years. Section 107 of the Evidence Act raises a presumption of death if the person concerned is not heard for more than 30 years. This presumption can be rebutted if evidence is brought on record that within last 30 years she was seen alive. Section 107 reads as under:

107. Burden of proving death of person known to have been alive within thirty years.--When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Here during trial, the contesting defendants have not adduced any contrary evidence to rebut this presumption. To the contrary as noted

by the trial Court, defendant no.1 himself has deposed about his 1/5th share, thereby admitting that line of Satish Das had gone extinct.

13. With regard to the second point for determination it must state at the outset that there is no impediment for partial partition under Hindu law.

Shivnarayan v. Maniklal, (2020) 11 SCC 629 : 2019 SCC Online SC 136 at page 645

29. The partial partition of property is well-accepted principle with regard to a joint family. In Mayne's Hindu Law & Usage, 16th Edn. in Para 485 the following has been stated:

"485. Partition partial or total.-- Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided.

Partial as to properties.-- It is open to the members of a joint family to severe in interest in respect to a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family. Until some positive action is taken to have partition of joint family property, it would remain joint family property."

30. Mulla on Hindu Law, 22nd Edn. also refers to partial partition both in respect of the property and or in respect of the persons making it. In para 327 the following has been stated:

"327. Partial partition.-- (1) A partition between coparceners may be partial either in respect of the property or in respect of the persons making it.

After a partition is affected, if some of the properties are treated as common properties, it cannot be held that such properties continued to be joint properties since there was a division of title, but such properties were not actually divided.

(2) Partial as to property.-- It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family."

14. Further it is settled law that there can be more than one preliminary and final decree in view of the supervening circumstances.

Every party is deemed to be plaintiff and can move the Court for carving out his or her share. It has been held in Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788

"14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.

19. The High Court was clearly in error in not properly appreciating the scope of Order 20 Rule 18 CPC. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the Government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The court would thereafter proceed for preparation of final decree. In Phoolchand [AIR 1967 SC 1470] , this Court has stated the legal position that CPC creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings".

15. One residential flat no. C/26 situated at mauza Sonari, Shanti Vihar apartment which the contesting defendants claim was obtained by

the plaintiff from sale proceeds of the disposal of 8 Kathas of joint family property, is not part of the suit property and no counter claim has been filed under Order 8 Rule 6A of the CPC to include it in the suit property. Under the circumstance there cannot be a decree of partition with respect to it and the decree shall be confined to the suit property.

Under the aforesaid facts and circumstance, I find and hold that the suit was not bad for non-joinder of necessary party and non-inclusion of the property claimed by the defendants/appellants in the suit property did not render the suit as not maintainable in its present form.

I do not find any infirmity in the judgment and decree of the learned Court below, which is accordingly affirmed.

The appeal is dismissed with cost.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 5th May, 2022

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