Research › Browse › Judgment

Calcutta High Court · body

1983 DIGILAW 302 (CAL)

Abhimanyu Mondal v. Ananda Kumar Mondal

1983-11-24

AMITABHA DUTTA

body1983
JUDGMENT 1. THIS is an appeal by the plaintiffs- from a decree of affirmance passed by the learned subordinate Judge, 8th Court, Alipore, 24 Parganas in a suit for a declaration of title, confirmation of possession and permanent injunction. 2. ADMITTEDLY the disputed plot No. 2409 measuring. 43 acre appertaining to C. S. Khatian No. 442 of Mouja Merudandi, P. S. Basirhat originally belonged to three brothers Gourhari, Hazari and Haripada Mondals and Gourhari subsequently purchased the l/3rd share of Hazari in the said plot by a registered kobala dated 15.2.1944. The plaintiffs as heirs of Gourhari have claimed l3rd share in the disputed plot. They brought the suit alleing that while they were in exclusive possession of a demarcated western 29 acre portion of the disputed plot by amicable arrangement with the other con sharers the defendant threatened to interfere with their possession. 3. THE defendants who are the purchasers from Haripada have contended that by amicable partition Haripada got 16 annas interest in the disputed plot no. 2409 of Khatian No. 442 and the plaintiffs got the interest of Haripada in the land of Khatian No. 684 of the same Mouja Merudandi and that because of such amicable arrangement with his co-sharers Haripada was in exclusive possession of the disputed plot before he sold it to the defendants by a registered kobala dated 26. 10. 1968. The defendants claimed to have exclusive possession of the entire plot No. 2409 in suit since their purchase. 4. THE court of first instance has found that there being no difference between amicable partition and separate possession by amicable arrangement among co-sharers Haripada was in exclusive possession of the disputed plot by amicable partition with his co-sharers before he sold it to the defendants and that the plaintiffs have failed to prove their alleged 'possession of a demarcated western 29 acre portion of the said plot. In that view it has dismissed the suit. The court of appeal below has rightly observed that the learned munsif made a confusion between amicable partition and amicable arrangement having distinct legal consequences. But the learned Judge has found that the defence case is supported by entries in the R. S. khatian and the exclusive possession of the defendants in the disputed plot which according to him cannot but followed from the fact of amicable partition. But the learned Judge has found that the defence case is supported by entries in the R. S. khatian and the exclusive possession of the defendants in the disputed plot which according to him cannot but followed from the fact of amicable partition. So he has held that the ultimate decision of the learned munsif is correct and affirmed the decision of the court of first instance. It has been submitted on behalf of the appellants before this court that there is no evidence of amicable partition pleaded by the defendants who have also alleged exclusive possession of the disputed plot by their vendor Haripada by amicable arrangement with the co-sharers in paragraph 17 of their written statement. It is pointed out that in the kobala dated 26. 10. 1968 (Ext. 'b') by which Haripada purported to sell the whole of the disputed plot 2409 of Khatian No. 442 to the defendants there is a recital that Haripada got the entire plot by exchange of his interest and possession in. 51 acre land of khatian No. 684 of the same mouja in favour of the co-sharers-plaintiffs. It is therefore argued that their could be no valid exchange without any registered document. it is also submitted that the entries in the R. S. record showing the shares of the plaintiffs and Haripada in the lands of Khatian No. 442 and 468 and possession of Haripada alone in the land of khatian No. 442 and possession of the plaintiffs alone in the land of khatian no. 684 are not consistent with the remark of possession by amicable partition which expression was loosely used to meet possession by amicable arrangement. 5. ON the other hand it is urged on behalf of the respondents that in view of: the evidence of exclusive possession oil the disputed plot 2409 by Haripada and thereafter by his vendors the defendants and the entries in the R. S. records the court below has rightly held that haripada got the disputed plot exclusively by amicable partition which took place soon after the final publication of the C. S. record. In order to explain the recital of exchange in defendant's kobala dated 26.10.1968 (Ext. In order to explain the recital of exchange in defendant's kobala dated 26.10.1968 (Ext. 'b') reliance has been placed on the Bench decision in the case of Atrabannessa Bibi vs. Safatullah Miya 22 CLJ 259 in which sir Ashutosh Mukherji, J. observed that partition signifies the tender of a portion of a joint right in exchange for a similar right from the co-sharers. But in the reported case the point at issue was whether a benamder can maintain a suit for partition of joint property. The aforesaid observations to explain the effect of partition does not in my view make partition synonymous with the transaction of exchange which is a different mode of transfer. It is difficult to agree with the submission made on behalf of the respondents that in the defendant's kobala the expression "ewaj" or "exchange" has been used to mean amicable partition. If what is meant is exchange of possession only then it is nothing but possession by amicable arrangement of haripada in. 43 acre land of the disputed plot 2409 and of the plaintiffs in 51 acre land of the two plots in khatian no. 684. Both the C. S. record and R. S. record show that Haripada had only 16th share in 51 acre land of khatian no. 684 and admittedly the plaintiffs had 2/3rd share in. 43 acre land of khatian no. 442. So areawise there was no equivalance to signify separate possession by a partition according to shares. There is practically no evidence of amicable partition between Haripada and his co-sharers of their joint lands. The alleged partition is said to have taken place in or about 1927 soon after the final publication of the C. S. record. But d. W. 2 Jugal Kishore who has deposed to the alleged amicable partition was aged only 54 in 1973 when he was examined. 6. BOTH the courts below have no-doubt found that the defendants were in exclusive possession of the disputed plot but there is no plea of adverse possession tantamount to ouster in the written statement. Separate and exclusive possession of specific joint properties by the co-sharers on the basis of amicable arrangement does not destroy the joint character of the properties nor does it bar a suit for partition at the instance of one of the co-shareps. The Court will not however, disturb the arrangement with a suit for partition. Separate and exclusive possession of specific joint properties by the co-sharers on the basis of amicable arrangement does not destroy the joint character of the properties nor does it bar a suit for partition at the instance of one of the co-shareps. The Court will not however, disturb the arrangement with a suit for partition. Mere exclusive possession for a long time without more is not sufficient to prove partition. To infer antecedent partition there must be circumstance apart from possession in severality, such as expensive improvement or exclusive appropriation of compensation money on acquisition or transfers for specific portions without objections from co-sharers and entries in the record of rights as separate property. In the instant case there is no evidence of such surrounding circumstances from which previous oral partition can be proved. I find that the court of appeal has erred in law in inferring previous partition from the nature of the entries in the R. S. records showing the shares of the plaintiffs and their co-sharer Haripada in the joint property including the suit plot and exclusive possession of the defendants in respect of the disputed plot. So, the plaintiffs have 2/3rd share in the disputed plot although they are not entitled to get any relief by way of recovery of possession or injunction in the present suit. The appeal is, therefore, allowed. The judgment and decree of the court below are set aside. The suit is decreed in part. The plaintiffs' 2/3rd share in the disputed plot no. 2409 of Mouja Merudandi is declared and the other reliefs claimed by them are disallowed. Parties will bear their own costs. Appeal allowed.