Umapati Manna v. Becharam Manna — 1989 DIGILAW 414 (CAL)

JUDGMENT Sengupta, J. : This judgment shall dispose of the Second Appeal No. 404 of 1980 filed by Charu Chandra Manna (since deceased) and also the connected revisional application under section 115 of the C. P. Code also filed by the said Charu Chandra Manna. The appeal and the revisional application are directed against the judgment and decree dated 13.9.79 of the District Judge of Howrah by which the learned Judge dealt with and disposed of an appeal against the judgment and decree dated 15.5.79 passed by the subordinate Judge in a partition suit being title Suit No. 1/76. The original appellant and petitioner namely Charu Chandra Manna was Defendant No.4 in the said title Suit. He having died has been substituted by his legal heirs Umapati Manna and others. Facts 2. The above partition suit was in respect of a dwelling house on Plot No. 318 of mouza Ichapur, P. S. Jagatdalpur in the district of Howrah. This dwelling house, according to Becharam Manna who instituted the suit, was a family dwelling house belonging to the family of the plaintiff and his uncle Gopal and Gopal having died his interest devolved upon his widow and two daughters (impleaded as Defendant Nos.1 to 3 in the suit) who thus acquired half share in the dwelling house. Charu Chandra Manna (predecessor of the present appellants and petitioners) was a stranger to the family, but he purchased in 1975 the half share of the heirs of Gopal in the said dwelling house. The plaintiff Becharam Manna filed the suit for partition of his share in the dwelling house with a prayer that he be allowed under section 4 of the Partition Act to buy up the half share purchased by Charu Chandra Manna who was impleaded as Defendant No. 4. 3. Charu Chandra Manna contested the suit and the prayer under section 4 of the Partition Act. Various pleas were taken in defence by Charu Chandra Manna, one of the pleas being that the suit was bad for partial partition inasmuch as some other plots including Plot No. 469 which had been recorded in the Record of Rights in the names of the plaintiff and his uncle Gopal (for half share) and in the names of the defendant Charu Chandra Manna and his brothers (for the remaining half share) have not been included in the suit. It was also contended, inter alia, that the prayer for purchase of his share under section 4 of the Partition Act was not maintainable. 4. To counter act the defence plea that the suit was bad for partial partition, the plaintiff on 15.2.79 had filed an application for amendment of the plaint for including the plot No. 469 in the schedule of the suit property. But this amendment application was not disposed of by the trial Court. 5. The trial Court found that the dwelling house in suit was a family dwelling house of the plaintiff and his uncle Gopal (predecessor of Defendant Nos. 1 to 3) and that the Defendant No.4 Charu Manna was stranger to the family. The trial Court further found that the plaintiff having -/8/- annas share in the family dwelling house was entitled to buy up under section 4 of the Partition Act the remaining -/8/- annas share purchased by Charu Chandra Manna from the heirs of Gopal. The trial Court also found that the suit was not bad for partial partition. Accordingly, the trial Court decreed the suit and made an order under section 4 of the Partition Act in favour of the plaintiff, Becharam Manna. 6. On appeal the learned District Judge came to the finding that the defendent Charu Chandra Manna was not a member of the family which occupied the undivided family dwelling house in plot No. 318. Some contentions were made before the learned District Judge that the prayer under section 8 of the West Bengal Land Reforms Act, and that the suit was bad for partial partition. The learned Judge rejected the contention that section 4 of the Partition Act was not applicable and upheld the decision of the trial Court that the plaintiff was entitled to pre-emption under section 4 of the Partition Act. 7. The learned District Judge, however, set aside the finding of the trial Court that the suit was not bad for partial partition. While affirming the trial Court's order as regards the plaintiff's right of pre-emption under section 4 of the Partition Act, the District Judge remanded the suit back to the trial Court for disposing of the application dated 15.2.79 for amendment of the plaint and for determining the question as regards partial partition and defect of parties. 8. While affirming the trial Court's order as regards the plaintiff's right of pre-emption under section 4 of the Partition Act, the District Judge remanded the suit back to the trial Court for disposing of the application dated 15.2.79 for amendment of the plaint and for determining the question as regards partial partition and defect of parties. 8. We have heard the submission at length of the learned Counsel of both the parties. 9. It is the concurrent finding of the courts below that the dwelling house on plot No. 318 was the undivided family dwelling house of the plaintiff and his uncle Gopal, the latter being succeeded on his death by his legal heirs namely Defendant Nos. 1 to 3. Further concurrent finding of the courts below is that the Defendant No. 4 Charu Chandra Manna was not a member of the family that occupied the family dwelling house. The learned District Judge has also found that the Defendant No. 4 Charu Chandra Manna never possessed the said family dwelling house before his purchase from Defendant Nos. 1 to 3. These findings have been arrived at on the basis of materials on record and we find nothing perverse in these findings. We must proceed on the facts as found by the courts below. 10. It was strenuously contended before us on behalf of the appellant that the prayer under section 4 of the Partition Act is not maintainable, because the suit has been brought not by the transferee but by the pre-emptor. In support of his contention that the right under section 4 of the Partition Act cannot be exercised unless the transferee institutes the suit, the learned Counsel for the appellant has relied upon a number of decisions including those reported in (1) 12 Cal LJ 525 and (2) 1967(2) ILR 301. As against those decisions the learned Counsel for the respondent plaintiff relied upon (3) AIR 1971 Orissa 127. (4) AIR 1984 Calcutta 19, (5) AIR 1969 Calcutta 88, (6) AIR 1981 Calcutta 278, (7) AIR 1973 Patna 142 and lastly on a Special Bench decision of this court in (8) Shibo Prosad Bhattacharjee v. Bibhuti Bhattacharjee, 1989(1) Cal LJ 547 wherein it has been held that pre-emption under section 4 of the Partition Act is available to a co-sharer of the family dwelling house even if the partition suit is brought by him. We respectfully agree with the views expressed in the above cases relied upon the learned Counsel for the respondent. The contention of the appellant is accordingly rejected. 11. It was next argued that in view of section 1(4) of the Partition Act, only section 14 of the West Bengal Land Reforms Act would be applicable to the present case. We are unable to appreciate the argument. Section 4 of the Partition Act and section 14 of the Land Reforms Act travel on different fields. Section 14 of the L. R. Act says a partition of holding among the co-sharer Rayats may be effected by a registered instrument or a decree of the court, and prescribes what the prescribed authority or the court should do when on such partition share comprises less than the standard area. The shares excluding the homestead may be recast. The provisions of section 14 aim at preventing fragmentation of holdings in the interest of effective cultivation and in the interest of agricultural production. These provisions have no impact on section 4 of the Partition Act which relates to family dwelling houses. 12. It was next contended that in the instant case the dwelling house appertained to an occupancy khatian comprising some others plots in which Charu Chandra Manna was a co-sharer and, therefore, Charu Manna was not a stranger to the suit property. This contention has to be rejected. Charu Manna was not a co-sharer in plot No.318 on which the dwelling house in question stands and he is not a member of the family that occupied the dwelling house. Whether Charu Manna was a co-sharer in respect of the other plots appertaining to the parent khatian is immaterial for the purpose of section 4 of the Partition Act. 13. It was alternatively contended that in view of the decision in (9) 76 CWN 1058 the plaintiff Becharam and his uncle Gopal ceased to be co-sharers in the holding and so the disputed transfer in this case cannot be said to be a transfer by the co-sharers of the plaintiff. We do not find any force in this contention. The dwelling house occupied by the plaintiff and his uncle was their joint property and they were members of the same family. We do not find any force in this contention. The dwelling house occupied by the plaintiff and his uncle was their joint property and they were members of the same family. If so, section 4 of Partition Act would be attracted if the heirs of Gopal sold their half share in the dwelling house to Charu Manna who was not a member of the family which occupied the dwelling house in suit. A reference may be mad in this connection to the case reported in (10) AIR 1985 Cal 406 wherein it has been held that as long as there is a dwelling house which has not been divided qua the family it may be said to be a dwelling house belonging to an undivided family. The application for pre-emption under section 4 of the Partition Act should not be read with mycroscopic scrutiny but in a broder manner. 14. The learned Counsel for the respondent invited this court to treat the present appeal as a First Miscellaneous Appeal in view of clause (u) of Rule 1 of Order 43 of the C. P. Code so that we may examine the evidence relating to the facts and make our findings of facts. We have considered the point. We are not inclined to take the present appeal as a First Miscellaneous Appeal, for in our view, by the impugned order the learned District Judge affirmed part of the judgment of the trial Court although he remanded the suit to consider the amendment application and the point whether the suit is bad for partial partition. It is not a case of remand by reversing the decision of the trial Court on a preliminary point contemplated by Order 41, Rule 23, nor a remand simpliciter contemplated by Order 41, Rule 23-A. The impugned order partly confirms the decree of the trial Court and sets aside the remaining part. So, the impugned order does not come within the perview of Order 43, Rule 1(u) of the C. P. Code. 15. The learned Counsel for the respondent then submitted that the respondent no longer presses his application for amendment of the plaint, and that the suit as framed is not bad for partial partition. So, the impugned order does not come within the perview of Order 43, Rule 1(u) of the C. P. Code. 15. The learned Counsel for the respondent then submitted that the respondent no longer presses his application for amendment of the plaint, and that the suit as framed is not bad for partial partition. As far as the dwelling house on plot No. 318 is concerned, it is an admitted position that there was no co-sharer of this property except the plaintiff and the defendant Charu Chandra Manna. As found by the courts below this dwelling house was recorded in the C. S. and R. S. Recof of rights in the names of the plaintiff and Gopal and later in the names of the plaintiff and Defendant Nos. 1 to 3 (successors of Gopal and veneors of the defendant Charu Manna). Despite having filed the amendment petition, the plaintiff explained before the trial Court by his evidence that other plots had not been included in the suit as there were other co-sharers of those plots. We fail to understand why despite this evidence the learned District Judge remanded the suit to the trial Court to consider the amendment petition. 16. The trial Court made a specific finding that the suit was not bad for partial partition. The learned District Judge instead of considering this finding on the materials. On record remanded the suit for consideration of the amendment petition. At the beginning in his judgment the learned Judge observed that in respect of Dag No. 469 not only the plaintiff and Gopal and the defendant Charu Manna but also the brothers of the defendant Charu Manna were recorded as co-shares. But these brothers of defendant Charu Manna admittedly had no share in the dwelling house on plot No. 318. If that is so, the finding of the trial Court that the suit was not bad for partial partition is correct the learned District Judge did not apply his mind to this aspect of the case. Consideration of the amendment petition for inclusion of Dag No. 469 was not necessary for disposal of the suit. The grounds for remanding the suit given by the District Judge in his judgment, in our opinion, are not tenable. Consideration of the amendment petition for inclusion of Dag No. 469 was not necessary for disposal of the suit. The grounds for remanding the suit given by the District Judge in his judgment, in our opinion, are not tenable. There is no material on record that the parties to the suit by themselves and to exclusion of any other person jointly held as co-sharers any property other than the dwelling house. On plot No. 318. The position being this, the order of remand passed by the learned District Judge should be set aside. 17. In our opinion, the judgment and decree passed by the trial Court are correct and should be affirmed and restored. Accordingly, we set aside the final order of the learned District Judge remanding the suit back to the trial Court while we agree accept his judgment affirming the decision of the trial Court regarding plaintiff’s right of pre-emption under section 4 of the Partition Act. In fine, we affirmed the judgment and decree of the trial Court and restore the same to file. This appeal is thus allowed but substantially in favour of the respondent. The revisional application is not maintainable since the impugned order is appealable and is, therefore, dismissed. We make no order as to costs either in the appeal or in the revisional application. Hazari, J. : I agree.