INDIAN IRON AND STEEL CO. LTD. v. SAHADEV ROY — 1996 DIGILAW 282 (CAL)

BASUDEVA PANIGRAHI, J. ( 1 ) THE unsuccessful defendant Indian Iron and Steel Company Limited is the appellant. The plaintiff/respondent has filed the suit for partition and declaration of 2/3rd share in the suit properties. The suit plots 2938 and 4121 In Khatian No. 215 and 3100 respectively of Mouza Hirapur originally belonged to one Makhan Mondal. After his demise his son Bholanath Mondal inherited the suit properties. Bholanath Mondal died childless leaving behind his widow who also subsequently died. Bital Mondal, the surviving brother of Makhan Mondal inherited the suit land. Makhan Mondal's other two brothers Charan and Bipin predeceased him. Bhim Mondal was the son of Charan and Arjun Mondal was the son of Bipin. Arjun and Bhim could not inherit anything as Makhan Mondal was survived by his full brother Bital Mondal. Bital Mondal, however, by way of family arrangement divided the suit properties into three parts and allotted 1 /3rd share to himself and also to the sons of his brothers, viz. Bhim and Arjun. In this way Bital got 1 /3rd share. Bhim Mondal and Arjun Mondal each got l/3rd interest in the suit property by way of family arrangement. Thereafter Bital died leaving behind his minor sons Banshi, Dukharan and his widow Ramani Dasi. While in possession of the suit property the mother of Banshi and Dukharan sold out l/3rd interest of Bital to Arjun Mondal by virtue of a registered Kobala dated 2. 7. 38 for legal necessity of the minors. Arjun thus acquired 2/3rd interest in the suit property and Bhim continued l/3rd interest. Arjun died leaving behind his widow Dolall Dasi and minor dautghter of Dulali Dasi, who inherited the interest of Arjun and began to possess the same. While in possession they sold their 2/3rd interest in favour of original plaintiff Karali Dasi (since deceased and substituted by the present plaintiffs) under the strength of a registered Kobala dated 17. 3. 47. The plaintiffs predecessor-in-interest was in peaceful possession of his interest in the suit properties. It is alleged by the plaintiff/respondent that the appellant obtained a fraudulent sale deed from the defendant No. 2 Dukharan and Banshiharan, who are the sons of Bital knowing fully well that they have no right, title and interest over the suit properties. 3. 47. The plaintiffs predecessor-in-interest was in peaceful possession of his interest in the suit properties. It is alleged by the plaintiff/respondent that the appellant obtained a fraudulent sale deed from the defendant No. 2 Dukharan and Banshiharan, who are the sons of Bital knowing fully well that they have no right, title and interest over the suit properties. The plaintiffs share was recorded in R. S. Khatian in respect of Plot 2938 but the name of plaintiffs predecessor has not been recorded in respect of plot No. 4128 which is described in the Schedule 'kha' of the plaint. Thus the plaintiffs have claimed 2/3rd share in the suit properties as described in Schedule 'kha' of the plaint and sought for partition over the suit properties. ( 2 ) IN respect of plot No. 2938 the defendants had allegedly got the award from the Land Acquisition Collector on the acquisition of the said plot and the original plaintiff claimed 2/3rd share in the Award in reference case before the Additional District Judge, Asnasol and in that reference Case No. 123 of 1962 the plaintiffs l/3rd interest in the suit property had been declared on the finding that by virtue of family arrangement with Bital, Arjun did not get anything but Arjun had acquired l/3rd interest by virtue of purchase from the widow of Bital as the guardian of the minors and that the plaintiffs having purchased that interest from Arjun had acquired l/3rd interest in plot No. 2938 and accordingly the plaintiff got the Award. Therefore, the plot No. 2938 having been acquired by the L. A. Collector was not included in the present suit. Thus the plaintiffs had claimed partition only in respect of plot No. 4121 of Hirapur Mouza described in Schedule 'kha' of the plaint which he purchased from Arjun long before the purchase by the defendant. It is alleged by the plaintiff that the R. S. record of right being clearly erroneous and fraudulent, the defendant cannot claim independent right by virtue of such wrong entry. ( 3 ) THE appellant filed its written statement, inter alia, denying the right, title and interest of the plaintiff over the suit properties. The defendant denies that there was any family arrangement between Bltal Mondal and his nephews. ( 3 ) THE appellant filed its written statement, inter alia, denying the right, title and interest of the plaintiff over the suit properties. The defendant denies that there was any family arrangement between Bltal Mondal and his nephews. The defendant had, however, admitted that the appellant who is the defendant No. 1 in the trial court had, however, admitted that out of two plots, plot No. 2938 had been acquired by the L. A. Collector and the plaintiffs 1/3rd share by virtue of purchase from Arjun was declared by the Additional District Judge in reference case as alleged in the name of the plaintiff. But it was contended that the plot No. 4128 was not the subject matter of the decision and there was no finding in favour of the plaintiff for the aforementioned plot. . The defendant also denied about the right of the mother of Dukharan and Banshi for selling any portion of the suit land in favour of Arjun and that if any sale deed was executed, that was never acted upon. The specific case of the defendant is that Bital Mondal was the full owner of the suit properties and he died leaving behind two sons, i. e. Dukharan and Banshi and their mother. Dukharan and Banshi were the owners of the plot No. 4121. On 21st January, 1955 they entered into a valuable agreement with the defendant No. 2 for the sale of the suit land and as part performance of the contract, delivered possession of the suit land to these defendants. ( 4 ) SUBSEQUENTLY, they executed a registered Kobala dated 17th February, 1956 in the name of the defendant No. 2. The defendant No. 1 had been in possession of plot No. 4121 in assertion of the hostile title since 1955 continuously. Therefore, the possession of the defendant No. 1 had been properly recorded in the R. S. record of rights. It is further claimed by the appellant that soon after the punchase they levelled the suit land with the neighbouring plots in 1955 and thereafter gradually laid roads, under-ground sewers etc. and constructed building thereon. The houses on the suit land were constructed ever since 1964. The defendant No. 1 thus has acquired an Independent title over the entire plot No. 4121 by ouster and prescription. and constructed building thereon. The houses on the suit land were constructed ever since 1964. The defendant No. 1 thus has acquired an Independent title over the entire plot No. 4121 by ouster and prescription. The trial court after carefully scrutinising the evidence of the parties had rejected the plea of the defendant/appellant that it had acquired interest by ouster and prescription. It was also held that the substituted plaintiffs have only 1/3rd interest over the suit land. ( 5 ) BEING aggrieved by the judgment and decree of the trial court the defendant No. 1 preferred appeal before the learned District Judge, Burdwan, which was eventually disposed of by the Additional District Judge, Burdwan in T. A. 211/8 of 1979 whereby the learned trial court's judgment and decree were affirmed. Therefore, the appellant being aggrieved with the judgment and decree of both the courts has preferred this appeal. ( 6 ) MR. Chakraborty, the learned advocate appearing for the appellant has advanced series of contentions challenging the validity of the judgment and decree of both courts below. He has submitted that immediately after the purchase by the defendant No. 1 the lands had been levelled and several quarters have been already constructed over the suit lands. It has been also contended that it is a clear case of ouster proved by the appellant company. It is unfortunate that both the courts below did not consider the case from proper angle and only decided the question of title and declared the share of the plaintiff/respondent. Mr. Chakraborty has also taken me through the evidences placed on the record. I am afraid, that while hearing the second appeal the question of fact which has been already concluded by the lower appellate court can not be again re-opened. Both the courts have held that the defendant No. 1 could not successfully prove ouster and, therefore, declared 1/3rd interest of the plaintiff over the suit properties. Further I noticed there is no credible evidence produced by the appellant upon whom the entire burden lay that there was any ouster of the plaintiff from the suit lands. Thus, it would emerge that the possession of one co-sharer in a partition suit would ensure to the benefit of all other co-sharers. Further I noticed there is no credible evidence produced by the appellant upon whom the entire burden lay that there was any ouster of the plaintiff from the suit lands. Thus, it would emerge that the possession of one co-sharer in a partition suit would ensure to the benefit of all other co-sharers. Accordingly agreeing with the observation of both the courts I hold that the defendant No. 1 could not successfully prove ouster of the plaintiff from the suit land. ( 7 ) MR. Chakraborty, the learned advocate in course of hearing of the appeal has placed two letters-one dated 12th January, 1983 written by Sahadeb Roy (since deceased) and the other dated 30th September, 1984 sent by his sons. It is submitted by Mr, Chakraborty that since the suggestion was made by the plaintiff/respondents to the effect that they are interested for compensation instead of their right claiming 1 /3rd share over the property, therefore, a direction be given to the trial. court while passing final decree only to determine compensation for payment of their 1/3rd share instead of carving out their moity share in their favour. ( 8 ) MR. Bhattacharya, the learned advocate appearing for the plaintiff/ respondent has, however, repelled the contention of M. Chakraborty by stating that those two letters cannot be considered by the appellate court inasmuch as the plaintiffs have not sought any leave from the court for filing those letters by way of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. It is further urged that even after reading the letter it would emerge only that the plaintiffs have never unconditionally offered to receive the price of their l/3rd interest but they had only suggested for settlement between the parties without prejudice to the rights and contentions of the parties. ( 9 ) SINCE those two letters did not form part of the record I refrain myself from making any observation with regard to nature of rights that would flow from those letters. ( 10 ) MR. Chakraborty in support of his contention has relied upon a decision reported in 90 CLJ (1952) at page 147 in the case of Narendra Nath Das v. Jnanendra Nath Das and Ors. ( 10 ) MR. Chakraborty in support of his contention has relied upon a decision reported in 90 CLJ (1952) at page 147 in the case of Narendra Nath Das v. Jnanendra Nath Das and Ors. where it has been held: "when a dwelling house Jointly earned by the members of a Hindu family, separate in food and worship, is sought to be partitioned, every member ordinarily has an inherent right to obtain a slice in his share. But, if partition be destructive of the intrinsic value of the property, the court may, in case coming under Section 2 of the Partition Act, direct a sale under that section. But, where Section 2 of the Partition Act is not attracted, there also the court has jurisdiction to direct sale independently of the Partition Act. A sale among the co-sharers subject to a valuation made by the court is the best method of determining which of them should retain the property and what sum is payable by him by way of compensation to the other co-sharers. If no offer over the valuation is forthcoming from any of the co-sharers, the property will be sold by public auction". ( 11 ) IT is submitted by the defendant No. 1 that immediately following the purchase the company has already invested huge amount by levelling the land and constructing the quarters thereon. Mr. Chakraborty has also submitted that the company has made roads for the convenience of the employees of the company. The drainage system has been provided. Company's employees have been already living in those quarters. The land has been brought to an irreversible stage for effecting partition. In case the quarters already constructed will be allowed to be demolished, it would cause colossal loss to the company which cannot be adequately compensated. On the other hand if the value of l/3rd share of the land be given to the plaintiff, their interest will neither be prejudiced or jeopardised. If the partition be destructive of the value of the property, the court may under Section 2 of the Partition Act direct the sale of the land to which a party is entitled to. In this case the plaintiffs have been already found to have possessed l/3rd interest of the land. ( 12 ) RELIANCE was also placed upon a decision in the case of Fakir Khan v. Kuanr Khan and Ors. In this case the plaintiffs have been already found to have possessed l/3rd interest of the land. ( 12 ) RELIANCE was also placed upon a decision in the case of Fakir Khan v. Kuanr Khan and Ors. wherein it has been held:"in effecting the partition where a court is confronted with a situation that an Item of property is not capable of physical partition and if divided it will loss its intrinsic worth, in such a case, that item can be allotted to one and compensation in money can be given to the other. The court adopts this method in making equitable partition of the joint property in exercise of its own discretion. It would be impossible for a court to effectuate a partition on an equitable basis, it, it should be put under a legal obligation to divide every item of the point property in specie. Applying the same principle the plaintiff should be paid due compensation in respect of the land out of the joint family property which falls to their share and is in possession of the defendant over which the defendant has constructed a building to the knowledge of the plaintiff and is staying thereon with his family members". ( 13 ) MR. Bhattacharyya the learned advocate appearing for the plaintiff/ respondents has invited my attention that of course it is open to the parties in a partition suit to resort to the remedy available under Sections 2 and 3 of the Partition Act. But it is premature to make observation regarding such remedy. It is further contended by Mr. Bhattacharyya that preliminary decree should not indicate that the suit property should be purchased by any co-sharers. In case the property is not feasible to be divided by co-sharers, the court while passing a final decree can pass equitable orders with regard to the difficulty in dividing properties. Thus it is premature to make any such observation in this appeal which had arisen against a preliminary decree. In support of his submission he has relied on a decision in the case of Nitya Gopal Samaboti v. Pran Krishna Dan and Ors wherein it has been held:"the result of the above discussion in my opinion is that there is no current authority which would establish that in a suit for partition the court possesses a power to direct a sale apart from the Partition Act. The provision of Order 26, the CPC merely lay down the mode in it the Commissioner will do his duty in making allotment. Nor can any inference be drawn from the general words of Order 20, Rule 18, it empowers the court while passing a preliminary decree for partition to give further directions. Such directions mean directions which relate to the working out of the preliminary decree for partition and cannot be invoked as conferring on the court a substantive power of sale apart from partition". ( 14 ) MR. Bhattacharyya has also relied upon a decision reported in AIR 1925 Patna at page 433 in the case of Lachmi Narayan Tewari v. Ram Sharan Tewari and Ors. From the aforementioned two decisions it has clearly emerged that after determining the share of the parties if it would not be feasible to effect partition among the co-sharers, any of the cosharers can file an application for appropriate order in the final decree proceeding to put the moiety share to sale so as to affording an opportunity to other co-sharers to purchase the same. In the instant case if the defendant is advised, can file an appropriate application expressing nonfeasibility of the property to be divided amongst the co-sharers. In case the court decides after taking into consideration the report of the Commissioner, who shall be appointed in the final decree that the property is not feasible to be divided, then, the value of the moiety share can be ascertained and paid to the owner. With this modification I dismiss the appeal and confirm the judgment and decree passed by the trial court. But, however, the parties are directed to bear their own cost.