Sri Apurba Chakraborty vs Sri Tapan ...
2022 Latest Caselaw 732 Tri

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                  HIGH COURT OF TRIPURA
                        AGARTALA

                     RFA NO.13 OF 2018

1. Sri Apurba Chakraborty,
Alias Apu Chakraborty(defendant 4),
Son of late Gopesh Chandra Chakraborty.

2. Smt. Rama Chakraborty(defendant 5),
Daughter of late Gopesh Chandra Chakraborty,
All of appellants 1 & 2 are resident of Madhya Para,
P.S. & P.O: Radhakishorepur-799120,
District: Gomati, Tripura.

3. Smt. Bina Chakraborty(defendant 6),
Daughter of late Gopesh Chandra Chakraborty,
And wife of Sri Bhupati Chakraborty,
Residing at village Raghunathpur,
PS & PO: Bishalgarh-799102,
District: Sipahijala, Tripura.

                         ---- Defendants-Appellants.


                          Versus


1. Sri Tapan Chakraborty(Plaintiff),
Son of late Manmathanath Chakraborty,
Resident of Nilima Apartment, near Pallimangal Samity,
Jaffarpur, Road, Nona Chandan Pukar, Barrackpore,
Kolkata-700122, West Bengal;

                                 ---- Plaintiff-Respondent

3. Sri Debashish Chakraborty (defendant 1b), Son of late Sailesh Chandra Chakraborty;

4. Sri Siddhartha Chakraborty (defendant 1c),

Son of late Sailesh Chandra Chakraborty;

5. Sri Subrata Chakraborty(defendant 1d), Son of late Sailesh Chandra Chakraborty;

6. Sri Sukanta Chakraborty(defendant 1e), So of late Sailesh Chandra Chakraborty;

7. Smt. Manidipa Chakraborty(defendant 1f), Wife of Goutam Das of Hrishi Colony, Kamarbag, P.O. Matarbari, Udaipur, Gomati District, Tripura;

8. Smt. Rumpa Bhattacharjee (defendant 1h), Wife of Sri Pradip Bhattacharjee, Resident of old Motorstand, P.O: Radhakishorepur-799120, District: Gomati Tripura;

9. Sri Biswajit Bhattacharjee (defendant 1h) Son of Sri Pradip Bhattacharjee, Resident of Old Motorstand P.O: Radhakishorepur-799120, District: Gomati Tripura.

10. Sri Paresh Chandra Chakraborty (defendant 2), Son of late Nagrendranath Chakraborty, Resident of North Chandrapur, P.O. south Chandrapur, P.S. Radhakishorepur, District: Gomati Tripura;

11. Smt. Snehalata Chakraborty(defandant7), Wife of late Ranjit Chakraborty, Resident of Gramtali, P.S. & P.O. Melaghar, District: Sipahijla, Tripura;

12. Smt. Mira Chakraborty (defendant 8), Wife of late Santosh Chakraborty, Residing under the care of Sri Subrata Chakraborty, Near Sabuj Sandha, P.O: Kharagpur, District: West Midnapur, West Bengal;

13. Sri Amar Chakraborty (defendant 9),

Resident of 19 Rajendra Banerjee Road, Behala, Kolkata-700034, West Bengal;

14. Sri Maran Chakraborty(defendant 10), Resident of 17/1 Mahendra Banerjee Road, Kolkata-700060, West Bengal;

15. Smt. Dipa Banerjee (defendant 11), Resident of Chirakumar Banerjee of Mahamayapur Road, Near Mahamayarpur School, Amarabati, Garia, Kolkata-700084, West Bengal;

16. Smt. Rita Ganguly (defendant 12), C/o late Dipak Ganguly, resident of 5 kailasha Kota Pally, Birati, Kolkata-700051, North 24 Parganas, West Bengal;

17. Smt. Mira Chakraborty (defendant 13), c/o late Dipak Ganguly, resident of 5 Kailasha Kota Pally, Birati, Kolkata-700051, North 24 parganas, West Bengal;

18. Smt. Basana Chakraborty (defendant 14), Wife of late Manmatha Nath Chakraborty, c/o Tapan Chakraboty, Nilima Aprtment, near Pallimangal Samity, Jaffarpur, Road, Nona Chandan Pukar, Barrakpore, Kolkata-700122, West Bengal;

19. Smt. Pravati Das (defendant 15a), Wife of late Subhash Chandra Das,

20. Sri Sanjit Das (defendant 15b) Son of late Subahsh Chandra Das,

21. Sri Sujit Das (defendant 15c) Son of late Subhash Chandra Das,

22. Sri Tapash Das (defendant 15d), Son of late Subhash Chandra Das,

23. Sri Simal Das (defendant 15e),

Son of late Subhash Chandra Das,

All are resident of Uttar Chandrapur, P.O: South Chandrapur, P.S: Radhakishorepur, District: Gomati Tripura;

24. Smt. Malina Das (defendant 15f), Daughter of late Subhash Chandra Das, Wife of Sri Babul Das, resident of Bashkhet, P.O: Murupara-799013, District: Gomati Tripura;

25. Sri Jogesh Chandra Bhowmik (defendant 16), Son of Dwarakanth Bhowmik, Resident of Uttar Chandrapur, P.O: South Chandrapur, P.S. Radhakishorepur, District: Gomati, Tripura.

26. Sri Dulal Kanti Majumder(defendant 17), Son of Suresh Chandra Majumder, Resident of Uttar Chandrapur, P.O: South Chandapur, P.S. Radhakishorepur, District: Gomati Tripura.

------- Defendant Respondents

For the Appellant(s) : Mr. D.K. Daschoudhury, Advocate.

For the Respondent(s) : Mr. A. Sengupta, Advocate.

Date of hearing             : 28.07.2022.

Date of delivery of
Judgment & Order            : 04/08/2022.

Whether fit for reporting   : YES/NO.










             HON'BLE MR. JUSTICE T. AMARNATH GOUD

HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY JUDGMENT & ORDER

(T. AMARNATH GOUD, J)

This is an appeal filed under Section 96 of the Code of

Civil Procedure, 1908 against the judgment dated

09.04.2018 and decree dated 23.04.2018 passed in

T.S.(Partition) 13 of 2015 by learned Civil Judge (Senior

Division), Udaipur, District: Gomati Tripura.

2. The facts leading to this appeal are that

respondent No.1 being the plaintiff preferred the suit

seeking partition and separate possession of ancestral

landed property of himself and the defendants-respondents

No.2 to 18 (hereinafter called the respondents) as inherited

from Nagendranath Chakraborty (since deceased) in

respect of the land as described in ‗Schedule A‟ of the pliant

measuring 3.50 acres recorded in Khatians No.432(1 to 3)

mouza Uttar Chandrapur, Tehshil: Matarbari, Sub-division,

Udaipur, District: Gomati Tripura.

3. Sri Nagendra Chakraborty owner of land measuring

4.32 acres of land as detailed in 'Schedule A' of the pliant

died intestate on 14.11.1977 AD leaving behind his legal

heirs namely, i) Smt. Haimabati Chakraborty-wife, ii) Sri

Manmatha Nath Chakraborty-son, iii) Sri Gopesh

Chakraborty-son, iv) Sri Shilesh Chandra Chakraborty-son,

v) Sri Paresh Chandra Chakraborty-son, vi) Smt. Snehalata

Chakraborty-Daughter, vii) Smt. Amiya Bala Chakraborty-

daughter, viii) Smt. Mira Chakraborty-daughter.

4. Sri Manmatha Nath Chakraborty died intestate on

19.02.1985 A.D leaving behind him his wife Basana

Chakraborty and son Sri Tapan Chakraborty who stepped

into the shoes of deceased Manmatha Nath Chakraborty in

equal share. Smt. Haimabati Chakraborty, wife of late

Nagendra Nath Chakraborty also died intestate on

19.12.1994. The 1/8th share of Himabati Chakraborty was

devolved upon the remaining three brothers, three sisters,

and wife and son of pre-deceased Manmatha Nath

Chakraborty. Sri Gopesh Chandra Chakraborty also died on

1995 A.D. leaving behind him his wife Sabita Chakraborty,

son -Apurba Chakraborty, daughters Rama Chakraborty

and Smt. Bina Chakraborty who took the share of Gopesh

Chandra Chakraborty in the property left by Nagendra Nath

Chakraborty in equal shares. Smt. Amiyabala Chakraborty

also died on 19.05.2004 leaving behind her two sons,

namely Amar Chakraborty, Sri Maran Chakraborty, and

daughters-Smt. Dipa Banerjee, Smt. Rita Ganguly and Smt.

Mira Chakraborty.

5. Now the share of the successors to the property

left by Nagendra Nath Chakraborty is as follows i) Smt.

Basana Chakraborty (defendant 140-1/14th, ii) Sri Tapan

Chakraborty (plaintiff)-1/14th, iii) Sri Sailesh Chandra

Chakraborty(defendant 1)-1/7th, iv) Sri Paresh Chandra

Chakraborty (defendant 2)-1/7th, v) Smt. Sabit Chakraborty

(defendant 3) -1/28th, vi) Sri Apurba Chakraborty

(defendant 4)-1/28th, vii) Smt. Rama

Chakraborty(defendant 5)-1/28th, viii) Smt. Bina

Chakraborty (defendant 6)-1/28th, ix) Smt. Snelata

Chakraborty (defendant 7)-1/7th, x) Smt. Mira Chakraborty

(defendant 8)-1/7th, xi) Sri Amar Chakraborty (defendant

9)--1/35th, xii) Sri Maran Chakraborty (defendant 10)

1/35th, xiii) Smt. Dipa Banerjee (defendant 11)-1/35th, xiv)

Smt. Rita Ganguly (defendant 12) -1/35th and xv) Smt.

Mira Chakraborty (defendant 13)-1/35th.

6. Out of the land measuring 4.32 acres, an area

measuring 0.82 acres (as described in Schedule B of the

plaint) had been acquired by the Government for railway

construction and thus reduced the land left by deceased

Nagendra Nath Chakraborty to 3.50 acres as described in

the ‗Schedule A‟ of the pliant (hereinafter referred to as the

suit land). Out of ‗A' Schedule land, an area measuring 0.67

acres had wrongly been recorded in Khatian No.1353 of

mouza Uttar Chandrapur in favour of defendant No. 3 which

is also a part of the suit land.

7. Out of the suit land an area measuring 0.055 acres

as described in ‗Schedule D-1‟ was sold jointly by defendant

1- Sailesh Chandra Chakraborty (then he was alive) and Sri

Gopesh Chandra Chakraborty (then he was alive)-

predecessors of defendants No.3, 4, 5 and 6 to one

Subhash Chandra Das under registered sale deed No.2162

of 1986. Side Subhash Chandra Das in the meantime died

and his successor was impleaded as defendants No. 15(a),

15(b), 15(c), 15(d), 15(e), and 15(f).

8. Out of the suit land an area measuring 0.055 acres

as described in ‗Schedule d-2' was sold jointly by

defendants 1 and Sri Gopal Chandra Chakraborty

(predecessors of defendants 3, 4, 5, and 6) and Smt.

Haimabati Chakraborty wife of deceased Nagendra Nath

Chakraborty under registered sale deed No.2163 of 1986 to

one Jogesh Chandra Bhowmik (defendant No. 16) and he is

in possession over the said plot of land.

9. Out of the suit land an area measuring 0.14 acre

as described in ‗Schedule D-3‟ was sold jointly by

defendants No.1 and 2 under registered sale deed No.1386

of 1997 to one Dulal Kanti Majudmer (defendant No.17)

and he is in possession over the said plot of land.

10. The plaintiff-respondent herein was residing in

Kolkata in his place of work as a Government employee

since 29.09.2014. He requested over the telephone to the

coparceners for partition of the suit land but to no avail.

Then the plaintiff on 27.07.2015 send letters to the

coparceners seeking partition of the suit land amicably. On

24.08.2015, the plaintiff-respondent herein visited

Chandrapur and met defendants 1, 2, and 3 when they

apprised him of the facts of acquisition of land by the

Government and of the fact regarding making separate

Khatian No.1353 of Mouza Uttar Chandrapur in favour of

defendant No.3 for land measuring 0.67 acres of land

(Schedule C) out of the suit land.

11. According to the plaintiff-respondent herein the

suit land is still undivided and the plaintiff-respondent has

joint occupation over it. Taking advantage of illegal entries

in the record of rights, defendant No.3 solely drew

compensation of an amount of Rs.47,880/- from the L.A.

Department for the acquisition of land measuring 0.67

acres (under Schedule C) to which the plaintiff had 1/4 th

share.

12. Aggrieved thereby, the plaintiff-respondent herein

as plaintiff instituted T.S.(Partition) 13 of 2015 and sought

the following reliefs:-

a) Declaration that the plaintiff has got th 1/14 Shares in undivided suit land and entitled to separate possession thereof;

b) Direction to defendant No.3 to pay the plaintiff 1/14th share from the compensation money received by her from the L.A. Department for acquisition of land of Plot No.616/3225.

c) Direction to the defendant to make partition of the suit land by metes and bounds amicably within a period to be fixed by the learned Court;

d) In case of failure to make partition with separate possession of the suit land by metes and bounds amicably within the period to be fixed by the learned Court to direct such partition to be make by the Collector or any Deputy Collector subordinate to the Collector deputed by the Collector in this behalf.

13. The defendant Nos.8, 10 to 14 have

contested the case by filing written statements admitting

the relief claimed by the plaintiff in the plaint. The written

statement of the defendant Nos.8, 10 to 14 is not discussed

elaborately because those defendants have admitted the

relief and the averments made by the plaintiff in the plaint.

Defendants Nos.3 to 6 have also contested the suit and

submitted a written statement denying the averment of the

plaintiff in the plaint. According to the defendant Nos.3 to 6

on 19-05-1987 Haimabati Chakraborty, W/O. Late

Nagendra Nath Chakraborty, grand-mother of the plaintiff

during her lifetime transferred the lands described in

Schedule ―C‖ of the plaint to Ashim Chakraborty, grand-son

of Haimabati Chakraborty by Registered Sale Deed No.1521

Volume No.1- 1460 dated 19-05-1987 in exchange of

promise that Haimabati Chakraborty would be taken care

by Ashim Chakraborty till her death with the knowledge of

the plaintiff and the defendants as the defendant No.2 is

the attested witness of the Sale Deed. According to

defendants Nos.3 to 6 Ashim Chakraborty died on 01-08-

2006 leaving behind his mother, defendant No.3 only as

legal heir. So, the land mentioned in Schedule "C" was

recorded in the Khatian No.1353 under Mouja - Uttar

Chandrapur in the name of the defendant No.3 by

mutation. As per law, Haimabati Chakraborty could transfer

by the aforesaid Sale Deed to Ashim Chakraborty her 1/8th

(one-eighth) share, i.e., 0.01 acres from Khatian No.432/3

present Plot No.1075 out of 0.08 acres and 0.04 acres from

Khatian No.432/2 present Plot No.1086 out of 0.31 acres

and 0.02 acres from Khatian No.432/1 of Plot No.1272 out

of 0.17 acres and 0.01 acres from Khatian No.432/1

present Plot No.1767 out of 0.09 acres, 0.02 acres from

Khatian No.432/1 present Plot No.1769 out of 0.18 acres

and 0.01 acres from Khatian No.432/2 of present Plot

No.1772 out of 0.10 acres and 0.01 acres from Khatian

No.432/2 of present Plot No.1848 out of 0.08 acres and

0.01 acres from Khatian No.432/2 present Plot No.1849 out

of 0.08 acres and 0.10 acres from Khatian No.432/1

present Plot No.616 out of 0.82 acres and 0.19 acres from

Khatian No.432/1 present Plot No.992 out of 1.42 acres and

0.03 acres from Khatian No.432/1 of present Plot No.995

out of 0.24 acres. The excess lands transferred by

Haimabati Chakraborty by the said Registered Sale Deed,

according to the defendant Nos.3 to 6 will be made

partitioned among the plaintiff and the defendants as per

the ratio mentioned in Para-16 over ―A‖ Schedule land.

According to the defendant Nos.3 to 6 after the transfer of

share of land of Haimabati Chakraborty the remaining

portion of land, i.e., 0.07 acres from Khatian No.432/3 and

0.027 acres from Khatian No.432/2, 0.15 acres from

Khatian No.432/1, 0.09 acres from Khatian No.432/1 and

0.16 acres from Khatian No.432/1 and 0.09 acres from

Khatian No.432/2, 0.07 acres from Khatian No.432/2, 0.72

acres from Khatian No.432/1, i.e., 1.23 acres from Khatian

No.432/1 present Plot No.992 and 0.21 acres from Khatian

No.432/1 present Plot No.995 will be made partition

among the plaintiff and the defendants as mentioned in the

plaint. As per the law, the remaining portion of the suit land

as mentioned will be made partitioned among the plaintiff

and the defendants as mentioned in the plaint. As per the

following ratio 1/14 : 1/7 : 1/28 : 1/28 : 1/28 : 1/28 : 1/7

: 1/7 :1/35 : 1/35 : 1/35 : 1/35 : 1/35 : 1/14 respectively.

According to the defendant, Nos.3 to 6 defendant No.3 has

not illegally withdrawn and utilized the entire amount of

compensation of Rs.47,880/- as awarded by the L.A.

Department for the acquisition of joint property

appertaining to Plot No.616/3225. Haimabati Chakraborty

transferred 0.16 acres of land in Khatian No.432/1 of

present Plot No.616 to Ashim Chakraborty by a Registered

Sale Deed. As per law, she could only transfer her 1/8th

(one-eighth) share over the undivided land, i.e., 0.10 acres

to Ashim Chakraborty. Defendant No.3 received

Rs.47,880/- for the acquisition of 0.16 acres of land as the

land was recorded in her name. So, defendant No.3 is liable

to return only Rs.17,955/- for the acquisition of access land

of 0.06 acres. Defendant No.3 is to return the said amount

of Rs.17,955/- to the plaintiff and the defendants which will

be made partition as per the ratio among the plaintiff and

the defendants as mentioned in Para-16 over ―A‖ Schedule

land. According to the defendants' award money for the

acquisition of the remaining 0.66 acres lying before the

L.A. Collector, Gomati District, Udaipur are to be made

partition among the plaintiff and the defendants as per ratio

as mentioned in Para- 16 over ―A‖ Schedule land. So, the

L.A. Collector may be directed to pay the sum to the

plaintiff and the defendants as per the ratio mentioned in

Para-16 over ―A‖ Schedule land. Under the above facts and

circumstances the defendant Nos.3 to 6 pray to make the

partition of the suit land as stated in the written statement

as per the ratio stated in the written statement among the

plaintiff and the defendants.

14. The learned Trial Court out of pleadings of both

sides framed the following issues:-

"(i) Whether the suit is maintainable in its present form and nature?

(ii) Whether the parties to the suit have any right, title and interest over the suit land?

(iii) Whether the suit land has already been partitioned amicably?

(iv) Whether the defendant No.3 is liable to pay 1/14th (one-fourteenth) share to the plaintiff from the compensation money received by her in connection with the Land Acquisition Department for acquisition of the plot No.616/3225?

(v) Whether any other reliefs can be granted to the parties to the suit?"

15. Both the parties adduced both oral and

documentary evidence.

16. After the conclusion of the hearing, the learned

Trial Court decreed the suit in preliminary form with the

following operative order:-

" In view of the above discussion and decision, it is hereby ordered that the suit for partition filed by the plaintiff is decreed on contest in preliminary form against the defendants. It is hereby declared that the plaintiff is entitled to get 1/14th (one fourteenth) share in undivided suit land and is entitled to get separate possession of the suit land. Defendant No.3 is directed to pay the plaintiff 1/14th (one fourteenth) share from the compensation money that the defendant No.3 solely received from the L.A. Department for acquisition of 616/325.

So, accordingly, the defendants are directed to make partition of the suit property as per quantum of the share portion of the plaintiff between themselves and the plaintiff as per the decree passed by this Court within one month from today, otherwise, plaintiff will have the liberty to get the share of the landed property to be partitioned by the Collector or any Deputy

Collector, subordinate to the Collector or deputed by the Collector in this behalf in due course of time".

17. Being aggrieved and dissatisfied with the

impugned judgment and decree, the appellants has filed

this instant appeal and prayed for the following reliefs:-

" (i) Admit the appeal condoning the delay;

(ii) Issue notice upon the respondents;

(iii) After hearing set aside the impugned judgment and decree and dismiss the suit;

(iv) Grant cost in favour of the appellant;

(v) Stay execution of the impugned decree till disposal of this appeal;

(vi) Pass any other order/orders as the learned Court deems fit and proper."

18. Heard Mr. D.K. Daschoudhury, learned counsel

appearing for the appellants as well as Mr. A. Sengupta,

learned counsel appearing for the respondents.

19. Mr. D.K. Daschoudhury, learned counsel appearing

for the defendant-appellants submitted that the learned

trial Court has committed a mistake in appreciating the

evidence on record holding that the gift deed No.1-1460

dated 19.05.1987 has not been proved. He further argued

that the court below has not considered the gift deed

though it is a registered document. He has pleaded that

may be due to typographical mistake in the pleading, it is

typed as 'sale deed' instead of 'gift deed'. When the court

questioned him with regard to not taking any steps for

carrying out the said amendment, there was no reply on

behalf of the learned counsel.

Further, when this court has asked the learned

counsel appearing for the defendant-appellants herein with

regard to not taking any steps for examining the witnesses

to the ‗gift deed‟ in Court there was no answer. Further,

when the Court asked the learned counsel that when the

1/8th property of the doner has not been partitioned by way

of metes and bounds how she has executed the ‗sale deed‟

or ‗gift deed‟ by indicating the boundaries, there was no

answer from the appellant.

20. Admittedly, the wife of Shri Nagendra Chakraborty,

Smt. Haimabati Chakraborty who has executed the gift

deed according to the defendant-appellants is the 1/8th

shareholder and the said „gift deed‟ which indicates the

metes and bounds is not justified since the 1/8th share was

not partitioned by way of metes and bounds.

The witnesses to the ‗gift deed‟ were not

examined. In the pleading, the appellants proceeded on the

analogy of ‗sale deed‟, and Exhibit-8 is the ‗gift deed‟ which

has been marked. The pleadings and the documents have

to go in consonance with each other. The appellants in

pleadings cannot contend about the ‗sale deed‟ and place

before the Court ‗gift deed‟. The other contentions raised

are also rejected.

21. In the above scenario, this court is of the

opinion that the appellants have not approached this court

with clean hands and in view of the above, the Judgment

dated 09.04.2018 and decree dated 23.04.2018 passed by

the learned Court below in TS(Partition)13 of 2015 is

reasonable and just and needs no interference. Accordingly,

the present appeal is dismissed.

22. Consequently, pending application(s), if any,

stands closed.

                      JUDGE                              JUDGE

suhanjit