Sri Tapan Majumder vs Sri Nepal Bhawal And Others
2022 Latest Caselaw 657 Tri

                           HIGH COURT OF TRIPURA
                                 AGARTALA
                                  CRP 29 of 2022

Sri Tapan Majumder
                                                                   ..........Petitioner(s)

                                        Versus

Sri Nepal Bhawal and Others
                                                                 ..........Respondent(s)

For Petitioner(s)                  : Mr. D.K. Biswas, Sr. Adv.
                                     Mr. G.K. Nama, Adv.
For Respondent(s)                  : Mr. Somik Deb, Sr. Adv.
                                     Mr. B. Banerjee, Adv.
                                     Ms. R. Chakraborty, Adv.
                                     Ms. R. Majumder, Adv.


                    HON'BLE MR. JUSTICE T. AMARNATH GOUD

                                        Order

12/07/2022

Heard Mr. D.K. Biswas, learned senior counsel assisted by Mr.

G.K. Nama, learned counsel appearing for the petitioner as well as Mr. Somik

Deb, learned senior counsel assisted by Ms. R. Majumder, learned counsel

appearing for the respondents.

2. This is a petition filed under Section 115(1)(c) of the CPC

questioning the correctness of the order dated 22.03.2022 delivered in Civil

Misc.12 of 2022 arising out of Ex(T)9 of 2021 by the Civil Judge, Senior

Division, Court No.2, Udaipur, Gomati Tripura.

3. The case in short is that the plaintiffs had filed a suit for partition

of the property described in the schedule of the plaint comprised of 5.58 acres

claiming that the property is a joint property. One Sushila Sundari Devi @

Sushila Sundari Debnath the original owner had sold 0.90 acres of land in 1979

to one Manik Lal Sarkar out of her total land. Manik Lal Sarkar again sold it by

a registered deed to the petitioner [defendant No.5 in the plaint] in 1985.

While taking possession of 0.90 acres of land, he also started possessing

adjacent lands, enclosed by wall, and continued to possess on and from 1985

to till the filing of the suit. The petitioner contested the suit and claimed that

he is not one of the joint owners and was possessing the land by dint of the

registered purchase deed in the year 1984 and the adjacent land were

possessed by him adversely. He has further claimed that the right of the

plaintiffs to sue against such possession had extinguished under Section 27 of

the Limitation Act.

4. The trial court dismissed the suit for partition holding that the

registered purchased deed produced by the petitioner clearly shows that the

property had already been partitioned in the year 1985.

5. Thereafter, the plaintiffs filed an appeal being T.A.17 of 2017

under Section 96 of the CPC which was disposed of by the judgment dated

03.01.2019 reversing the judgment of the trial court and confirmed the

judgment of the first appellate court.

6. The case of the petitioner is that he is neither a legal heir of the

original owner nor a joint owner of the suit property in question. His

possession is by virtue of the registered purchased deed which is not under

challenge. The petitioner has further stated that the respondents have not

claimed that the land was purchased wrongly or fraudulently.

7. Having heard both the sides prima facie this court is convinced

with the argument made by the counsel for the petitioner on the point that the

petitioner is a purchaser of the property of the vendors and the legal heirs of

Sushila Sundari Devi @ Sushila Sundari Debnath who are the respondents

No.10(a), 10(b) and 10(c). It is the case of the petitioner that 0.90 acres of the

land in the joint family property which is a subject property for partition suit

and it needs to be protected. Since the petitioner inadvertently not list the

particulars including the extent of land, boundaries and the sale deed

documents before the court below in the execution proceedings and has

invited an order of rejection of his application under Section 47 of the CPC

which is under challenge.

8. Mr. Somik Deb, learned senior counsel appearing for the

respondents has made a fair submission before this court that they have no

objection if an opportunity is given to the petitioner by remanding the matter

back to the court below and to reexamine the matter under Section 47 of the

CPC if a fresh application, providing all particulars, is filed.

9. Since this court feels that an opportunity ought to have been

given on the ground that his possession and his sale was not denied by the

parties to the partition, a fair opportunity be given to the petitioner by the

court below.

10. Accordingly, liberty is given to the petitioner to file a fresh

application under Section 47 of the CPC providing all the relevant information.

On filing such application, the court below shall examine the matter keeping in

mind Section 47 of the CPC with regard to execution of the decree.

In view of the above discussion, the impugned order dated

22.03.2022 passed by the court below is set aside. The matter is remanded

back.

Registry shall take steps for transmitting the lower court records.

With the above observation, this petition is disposed of.

Pending application(s) also stands disposed of.

JUDGE

Sabyasachi B