Sri Biswajit Paul vs Smt. Pratima Paul
2022 Latest Caselaw 107 Tri

                                        Page 1




                          HIGH COURT OF TRIPURA
                               AGARTALA
                             RFA 23 of 2019
          Sri Biswajit Paul,
          son of late Santosh Chandra Paul, resident of B.K. Road,
          Palace Compound, P.S. East Agartala, District- West Tripura
                                                           ....Defendant-Appellant
                       VERSUS
     1.   Smt. Pratima Paul,
          wife of Sri Manik Lal Paul, daughter of late Santosh Chandra Paul,
          resident of Central Road Extension, Agartala-799001,
          District- West Tripura
     2.   Smt. Nilima Paul (Debnath),
          wife of Sri Tapan Kumar Debnath, daughter of late Santosh Chandra Paul,
          resident of B.K. Road, Palace Compound, P.S. East Agartala, District-
          West Tripura
     3.   Smt. Anima Paul,
          wife of Sri Nilanjan Chanda, daughter of late Santosh Chandra Paul,
          resident of B.K. Road, Palace Compound, P.S. East Agartala, District-
          West Tripura
                                                           ... Plaintiff-Respondents
          For Appellant (s )                 :     Mr. SK Deb, Senior Advocate
                                                   Mr. PK Pal, Advocate
          For Respondent (s)                 :     Mr. SM Chakraborty, Sr. Adv.
                                                   Ms. A. Pal, Advocate
          Date of hearing and delivery
          of judgment & order               :      28.01.2022
          Whether fit for reporting         :      Yes / No.
                                 BEFORE
                     HON'BLE MR. JUSTICE ARINDAM LODH
                   HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                            JUDGMENT & ORDER (ORAL)
(Arindam Lodh, J.)
1.        This second appeal under Section 96 of the CPC arises out of the judgment

and decree dated 01.05.2019 passed by the learned Civil Judge (Senior Division),

Court No. 2, West Tripura, Agartala in case no. T.S. (Partition) 22 of 2006.
                                        Page 2




2.     Facts

in a short compass are that, the three sisters and the defendant are the

daughters and son of the deceased Santosh chandra Pal. The plaintiffs i.e. daughters

of late Santosh chandra Pal had requested on repeated occasions to their brother,

Biswajit Pal i.e. the sole-defendant of the instant suit to partition the movable and

immovable properties left behind their father, late Santosh chandra Pal at Agartala as

well as two flats in Kolkata.

3. After exchange of pleadings, issues were framed. On the basis of issues,

evidences were led by the parties to the suit. Some documents were introduced

relating to the properties in question. After completion of recording evidences and

having heard the learned counsel appearing for the parties, the learned trial Judge

decreed the suit in favour of the plaintiffs, which is as under:

"Accordingly, plaintiff Nos. 1 to 3 and sole defendant are entitled to 1/4th share each over the land property measuring 0.0990, specifically mentioned in khatian no.29650 of Mouja-Agartala Town Sheet No. 13, Hal dag no. 848 and also, are entitled to 1/ 4th share each over the suit property mentioned as, Flat situated at Ragunathpur, Baguiati, P.O- Jengra, Kolkata- 59, West Bengal, in the apartment namely, "Sankhanir Apartment", as well as, is entitled to 1/ 4th share each over Flat on the first floor measuring 629 Sq. feet with common area of 198 Sq. feet, which in total measures 827 Sq. feet, situated and lying at the building called, "ARVIND TOWER", a portion of premises 242/IB, Acharya Prafulla Chandra Road, Kolkata- 700004, P.S- Burtolla.

Parties in the suit are directed to make amicable partition of the aforementioned entitled suit properties within 2(two) months, failing which parties are at liberty to approach before this court for passing final decree accordingly in the suit.

Thus, the suit is disposed of on contest without costs in preliminary form."

4. The plaintiffs have no grievance about the said decree passed by learned trial

Judge and they have not preferred any appeal. However, the defendant being Page 3

aggrieved of the judgment and decree, as stated here-in-above, has preferred the

instant first appeal before this court only relating to the properties situated at Kolkata.

5. We have heard Mr. SK Deb, learned senior counsel assisted by Mr. PK Pal,

learned counsel appearing for the defendant-appellant, here-in-after referred to as the

defendant. Also heard Mr. SM Chakraborty, learned senior counsel assisted by Ms.

A. Pal, learned counsel appearing for the plaintiff-respondents, here-in-after referred

to as the plaintiffs.

6. At the very outset, Mr. SK Deb, learned senior counsel appearing on behalf of

the defendants has confined his argument within the disputed properties at Kolkata,

i.e. the flats situated at Raghunathpur and Arvind Tower. In order to dispute the

partition of the said two flats, Mr. Deb, learned senior counsel has candidly

submitted that the plaintiffs have not been able to substantiate the facts of existence

of these two flats, and more particularly, the ownership of the two flats by their

father, late Santosh chandra Paul. Mr. Deb, learned senior counsel has tried to

persuade this court that the plaintiffs have not made any averment in their plaint

regarding the ownership of flat situated at Raghunathpur by their father, late Santosh

Chandra Paul. Consequently, Mr. Deb, learned senior counsel has disputed the

ownership of late Santosh chandra Paul over the flat situated at Arvind Tower for the

reason that the plaintiffs though has produced Title Deed relating to the flat owned

by late Santosh Chandra Paul at Arvind Tower in Kolkata, but, this document has not

been proved according to the rule of Evidence. In other words, learned senior counsel

has disputed the admissibility of the said document because it is a photocopy of the

original Title Deed. Mr. Deb, learned senior counsel has further submitted that the Page 4

plaintiff has not been able to furnish any document relating to the ownership of late

Santosh chandra Paul over the flat situated at Raghunathpur under the name and style

'Sankhanir Apartment'.

7. On the other hand, Mr. SM Chakraborty, learned senior counsel appearing on

behalf of the plaintiffs has submitted that the plaintiffs have included all the

properties belonging to late Santosh chandra Paul, their deceased father, in the plaint

and the defendant has not disputed any of the properties neither in his written

statement nor in his evidence.

8. We have considered the submissions advanced by learned counsel appearing

for the parties to the lis.

9. We have gone through the records including the judgment and decree passed

by the learned trial Judge. On careful reading of the plaint, it comes to light that the

plaintiffs have included all the properties left behind by their father, late Santosh

chandra Paul in the schedules of the plaint. They have stated categorically at

paragraph 12 that they are entitled to get 1/4th share each of all the estates and

properties left by their deceased father which are mentioned in schedules 'A' and 'B'

of the plaint. For convenience, entire paragraph 12 may be reproduced here-in-

below:-

"12. That, the wife of deceased Santosh Chandra Paul i.e. the mother of the plaintiffs and the defendant died long ago and the plaintiffs and the defendant are the only legal heirs of deceased Santosh Chandra Paul who are entitled to get the share of the joint property left by deceased father Santosh Chandra Paul. The entire movable and immovable properties duly mentioned in details in the Schedule- 'A' & 'B' below in which the plaintiffs and the defendant are individually entitled to get 1/4th share in which over the assets and properties left by deceased father Santosh Chandra Paul and hence this suit. Before filing of this suit on so many occasions the plaintiffs individually and jointly requested the Page 5

defendant to sit together to make partition their joint properties i.e. the business, movable and immovable properties, the defendant given assurance on so many occasions, but it is came to learn that the defendant with the assistance of some staffs of M/s Gopal Bhandar and his friends already been taken away a big cash amount from the business property and opened a new account in his own name through he has/had no individual capital over the said joint business, only to deprive the plaintiffs refused to partition the entire joint properties and business and finding no other alternatives the plaintiffs file the instant suit before this Ld. Court as defendant filed a false statement of accounts and return before the income tax authority during the Assessment year 2005-06 on 31.10.05 and accordingly the cause of action of the instant suit arose on 27.03.04 when the father of the plaintiffs and defendant died and thereafter on so many occasions when the plaintiffs requested the defendant to make partition the joint property/business and lastly when the defendant submitted a false return before the income tax authority on 31.10.05 and cause of action of the instant suit is still continuous."

10. We have meticulously perused the written statement filed by Sri Biswajit

Paul, the defendant herein. It is noticed that the dispute raised by the defendant

mainly revolves around the movable properties and the godown situated at Agartala.

There is no denial or dispute regarding existence or ownership of late Santosh

chandra Paul over the two flats situated at Kolkata mentioned in the schedules of the

plaint. We have also perused the evidences let in by said Biswajit Paul, the

defendant-appellant. In the evidences also we find that he did not raise any dispute

regarding existence over the said flats left by their father, late Santosh chandra Paul.

11. According to us, in a partition suit, the plaintiffs or the parties who seek for

partition may not have any knowledge about the details of the properties. Such party/

parties may not have any document lying with them relating to the properties

concerned, but, in our considered view, if such party/parties are able to show and put

it on record about the properties belonging to their ancestor(s), then, the burden lies

upon them only to show that the properties are left behind by their ancestor(s) and it Page 6

will be the onus upon the defendants to dispute such existence or ownership of such

properties, as raised by the parties/plaintiffs in a suit by adducing sufficient evidence.

12. In the case in hand, in our considered opinion, the defendant has failed to

discharge his onus that the properties situated at Kolkata do not belong to their

deceased father, late Santosh chandra Paul. In view of this, we find no infirmity in

the decree as passed by the learned trial Judge.

13. Another feature is that if there is no flat at all in Kolkata in the name of late

Santosh Chandra Paul, then, the decree relating the said two flats will be non-

executable, and in that case, the defendant will not be prejudiced in any manner.

14. In the light of above discussions, the judgment and decree passed by the

learned trial court stand upheld and affirmed. Consequently, the instant appeal stands

dismissed.

Pending application (s) if any, also stands disposed.

Send down the LCRs.

                JUDGE                                               JUDGE




Saikat