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2002 DIGILAW 207 (CAL)

MANORANJAN PRAMANIK v. GOURHARI PRAMANIK

2002-03-26

NARAYAN CHANDRA SIL

body2002
N. C. SIL, J. ( 1 ) THIS appeal has been directed against the judgment and decree passed by Shri Milan Chatterjee, learned Additional District Judge, 3rd Court, Midnapore on 4. 7. 1997 in connection with Title Appeal No. 33 of 1996 affirming the judgment and decree dated 9. 1. 1996 passed by Shri G. C. Sarkar, learned Assistant District Judge, Tamluk, Midnapore in connection with Title Suit No. 90 of 1993. ( 2 ) THE suit before the trial Court was for declaration and pre-emption alternatively for partition. The trial Court was pleased to decree the suit which was confirmed by the lower appellate Court. ( 3 ) THREE plots namely plot No. 1307, measuring 32 decimal of Bastu land, plot No. 1303, measuring 7 decimal 'doba' (small pond) and plot No. 1297 measuring 16 decimal of tank are the subject matter of the suit. Those properties were owned and possessed by two brothers Rakhal and Bankim along with other co-sharers. It is claimed that those three plots are the undivided family dwelling house of those two brothers and the plaintiff is the son of Bankim. It is also claimed that the R. S. Record of right was accordingly prepared in their names. Bankim died leaving behind his wife, three sons namely Gourhari (the plaintiff), Mantu and Netai (defendant No. 6) and one daughter, Kumudini. Thereafter wife of Bankim died and her share was equally divided amongst her three sons and daughter. The other part of the plaint case is that Rakhal sold his share 31/2 decimal from plot No. 1307, 13/4 decimal of plot No. 1303 and 0. 3 decimal from plot No. 1297 to the plaintiff and his brother Netai by virtue of sale deed dated 11. 6. 1985. Kumudini also sold her share in 'kha' schedule property and other properties to her two brothers, Netai and Mantu by virtue of registered sale deed dated 24. 6. 1993. Netai sold his entire share in 'kha' schedule property to the plaintiff by sale deed dated 25. 6. 1993. Thus, the plaintiff by way of inheritance and purchase got the 'ka' schedule property and he was in possession of the same along with the defendant Nos. 6 and 7. The third part of the plaint case is that the defendant Nos. 1 to 5 have their homestead in different plots and they are strangers to the 'kha' schedule property. Thus, the plaintiff by way of inheritance and purchase got the 'ka' schedule property and he was in possession of the same along with the defendant Nos. 6 and 7. The third part of the plaint case is that the defendant Nos. 1 to 5 have their homestead in different plots and they are strangers to the 'kha' schedule property. It was ascertained by the plaintiff subsequently that Rakhal sold the land described in schedule Ka/1 to the plaint to the defendant Nos. 1 to 5 by virtue of two deeds dated 25. 6. 1992. It is claimed by the plaintiff that the property described in 'kha' schedule to the plaint is the undivided family dwelling house of the plaintiff and defendant Nos. 6 and 7 whereas the defendant Nos. 1 to 5 are the stranger purchasers in respect of the said undivided family dwelling house. It is also the plaint case that the plaintiff approached the defendant Nos. 1 to 5 to purchase the properties described in Ka/1 schedule at the market price but the defendant Nos. 1 to 5 refused and hence the suit. The defendant Nos. 1 to 5 contested the suit by filling written statement in which all the material allegations were denied and it was, inter alia, stated that they have blood relations with the plaintiff and the defendant No. 7 and they came from the common ancestor. It is also claimed by the defendant Nos. 1 to 5 that since purchase they are in possession of property in question by erecting construction and by using water of the suit tank and suit doba. It is also claimed by the defendant that the suit was bad for defect of parties so far the prayer of partition is concerned. ( 4 ) ON sifting of the records it appears that no substantial question was formulated at the time of admission of the appeal and as such the following substantial questions of law have been formulated for determination in the instant appeal :1. WHETHER the suit was bad for defect of parties and whether the Courts had overlooked the situation and arrived at a perverse finding. 2. Whether the alternative prayer for partition and pre-emption can be made simultaneously in a single suit. ( 5 ) MR. WHETHER the suit was bad for defect of parties and whether the Courts had overlooked the situation and arrived at a perverse finding. 2. Whether the alternative prayer for partition and pre-emption can be made simultaneously in a single suit. ( 5 ) MR. Ram Prakash Banerjee appearing for the appellants/defendants submits before me that the Courts below did not place the onus properly and there was no proper appreciation of evidence for which both the Courts below arrived at a perverse finding. It is also argued by him that all the co-sharers were not made parties in the suit and as such the prayer for partition cannot be passed, for, partial partition is something unknown in law. It is also pointed out by Mr. Banerjee that the parties including the defendants Nos. 1 to 5 are the descendants from the common ancestor and as such the defendants cannot be treated as strangers and accordingly there is no question of pre-emption. Mr. Banerjee has also taken me through the provisions of section 4 of the Partition Act and tries to impress upon me that the said section demands assertion of title by the plaintiff which is lacking in the instant case. Mr. Banerjee has then pointed out the evidence of the PW 1 and submits that the PW 1 admitted in his cross-examination that there was no partition by metes and bounds in respect of the properties in khatian Nos. 190 and 191 which comprised not only the suit property but other properties of other co-sharers. ( 6 ) MR. Banerjee, the learned advocate for the appellant has referred to the ratio decided in the case of Babulal v. Habibnoor Khan ( AIR 2000 SC 2684 ). It was decided in the said case that the suit under section 4 of the Partition Act is maintainable only if the stranger purchaser moves for getting partition and separate possession of his share. The said decision was made by the Hon'ble Supreme Court in the suit where the application was made by the members of the family to purchase the stranger's share. ( 7 ) MR. Bidyut Kumar Banerjee, learned advocate appearing for the respondent/plaintiff submits before me that the claim of pre-emption of the plaintiff was only against the defendant Nos. 1 to 5 and the defendant Nos. 1 to 5 preferred the present appeal. Mr. ( 7 ) MR. Bidyut Kumar Banerjee, learned advocate appearing for the respondent/plaintiff submits before me that the claim of pre-emption of the plaintiff was only against the defendant Nos. 1 to 5 and the defendant Nos. 1 to 5 preferred the present appeal. Mr. Banerjee has further argued before me that in the instant case the plaintiff is not entitled to get any decree for pre-emption under section 4 of the Partition Act but is added by him that the pre-emption law has since been changed and in this connection, Mr. Banerjee has referred to the ratio decided in the case of Gautam Paul v. Debi Rani Paul and Ors. ( AIR 2001 SC 61 ). It was held in that case that when the suit property belonged to family members of one branch from common ancestor and a portion was purchased by member of other branch from the common ancestor, such purchaser is not member of the owners family merely because a person is related by blood through common ancestor. It was also held in that case that unless there is institution of proceeding or making a claim for partition by the stranger purchaser of share in a family dwelling house, the co-sharers do not get the right to claim pre-emption. It was also held in that case that a mere assertion of a claim to a share without demanding separation and possession by the stranger purchaser is not enough to give to the other co-sharers a right of pre-emption. The Hon'ble Apex Court thus observed that there is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger/purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for partition. The Hon'ble apex Court has also observed that if any other interpretation is accepted then in all cases, where there has been a sale of a share to an outsider, a co-sharer should simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the same to him, he would be forced to sell his share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the same to him, he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a suit for partition. This was not the intent for purpose of section 4 of the Partition Act, the Hon'ble Supreme Court observed. ( 8 ) AFTER having cited the ratio decided in the case of Gautam Paul (supra), as discussed above, Mr. Banerjee appearing for the respondent submits before me that in view of the legal position set out in the said judgment of the Hon'ble Apex Court, the judgments passed by both the Courts below may be modified to the extent that at present the plaintiff is not entitled to pre-emption. ( 9 ) IN reply the learned advocate for the appellant submits before me that the learned advocate for the respondent has admitted in course of argument that in the instant case the decree for pre-emption is not possible. It is also pointed out by him that nothing has been stated in the plaint that the suit property was exclusive property of Rakhal (defendant No. 7) and Bankim and that they got it by partition. ( 10 ) THERE is, in fact, no story of partition by metes and bounds amongst the co-sharers of the suit property. In fact, it is the specific case of the plaintiff that the suit property is the undivided dwelling house and part and parcel thereof. Admittedly, the defendant Nos. 1 to 5 are the purchasers and they have not preferred any claim for partition. That being the position following the ratio decided in the case of Gautam Paul (supra) as referred to by the learned advocate for the respondent and in view of his frank submission the claim of pre-emption of the plaintiff in terms of the provisions of section 4 of the Partition Act is not tenable. But the claim of pre-emption of the plaintiff will only arise in case the defendants prefer any claim for partition of the property at any stage. Thus, the only two other points as regards the declaration of title of the plaintiff and their claim for partition remain. But the claim of pre-emption of the plaintiff will only arise in case the defendants prefer any claim for partition of the property at any stage. Thus, the only two other points as regards the declaration of title of the plaintiff and their claim for partition remain. ( 11 ) THE defendant did not challenge the title of the plaintiff in the suit plots and the plaintiff has also similarly admitted the fact of the sale of the property to the defendant. The suit property consists of plot Nos. 1297, 1303 and 1307. Except plot Nos. 1307 and the other two plots namely plot No. 1303 and 1297 are 'doba' and 'tank' respectively. ( 12 ) THE plaintiff appears to have produced the relevant khatian before the trial Court which were exhibited as Exhibit 2 and Exhibit 2 (a ). All the three suit plots find place in Exhibit 2 which is khatian No. 190. It further appears from Exhibit 2 that plot No. 1297 was described as Jal (water) measuring 16 decimal of land. The name of the persons in possession of the said plot is not mentioned in the column meant for 'remark'. On the other hand, it appears from the first page of Exhibit 2 that the title and possession of some other different persons along with the predecessor of the plaintiff were incorporated there who have not made parties to the instant suit. Exhibit 2 (a) is khatian No. 158/1 where plot No. 1303 has been described as 'doba' measuring 7 decimal of land recorded in the name of Bankim Pramanik, Rakhal Pramanik and many others. Defendant No. 6, Mantu is the son of Bankim. In fact, both the khatian being Nos. 190 and 158/1 contain the name of many other co-sharers of the suit property who have not been made parties to the instant case. ( 13 ) GOURHARI Pramanik had deposed as PW 1 in his cross-examination that the suit plots were recorded in the names of Shibu, Mongal and Bankim to the extent of 8 annas share and the other 8 annas share was recorded in the name of Judhisthir. It is also admitted by him that Baidya Nath and Judhisthir are two brothers. It is also admitted by him that Baidya Nath and Judhisthir are two brothers. The PW 1 then stated in his cross-examination :"it is a fact that plot No. 1297 was recorded in the name of Shibu, Mongal and Bankim Pramanik during R. S. No partition by metes and bounds was effected amongst co-sharers of khatian Nos. 190 and 191 by registered deed or through Court. "the above mentioned evidence of the PW 1 in the nature of admission finds support from the record of rights which I have already discussed. The evidence of the PW 1 was taken by the Courts below as a stray matter which is absolutely unfounded and contrary to the materials on record. ( 14 ) IN a suit for partition the character of the parties are always interchangeable and as such for the defect of the parties I do not find it justified to dismiss the suit without giving any opportunity to the parties to make the other co-sharers parties to the suit. ( 15 ) THE learned advocate for the appellant has not argued anything before me that alternative prayer cannot be made in the self-same suit. In fact, such alternative prayers, as made in the instant suit, in my view, are quite maintainable. ( 16 ) THE learned Courts below at the time of disposing the matter before them do not appear to have considered the aspects which I have already discussed above. ( 17 ) ACCORDINGLY, the appeal succeeds in part. The appeal is, therefore, allowed in part on contest. The judgment and decree passed by the Courts below are hereby set aside. The suit be remanded back to the trial Court for fresh finding on the question of declaration of the share of the parties and partition after giving the fresh opportunity to the plaintiff to make other co-sharers parties to the suit giving opportunity to both the parties to adduce fresh evidence on that point. The learned trial Court is directed to dispose of the suit within a period of six months from the date of the receipt of the copy of the judgment and the LCR. Parties are directed to bear their respective costs. A copy of this judgment along with the LCR be sent down to the Courts below forthwith. Appeal succeeds in part.