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2008 DIGILAW 125 (CAL)

Motilal Shaw v. Hiralal Shaw

2008-01-28

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment Bhaskar Bhattacharya, J. This first appeal is at the instance of a plaintiff in a suit for partition and is directed against the judgment and decree dated 30th May, 1997, passed by the Assistant District Judge, 9th Court, Alipore in Title Suit No.56 of 1994 thereby dismissing the suit for partition. The case made out by the plaintiff in the aforesaid suit may be summed up thus: (a) All that piece and parcel of lands with three-storied building lying and situate at 26B, Lansdowne Place as described in schedule ‘A’ and all the lands with one-storied building being a portion of municipal premises No.26C, Lansdowne Place are the subject-matter of the suit. (b) Satish Chandra Dhar, Santosh Kumar Dhar, Nitya Gopal Dhar and Pratap Chandra Dhar were the original owners of municipal premises No.26, Lansdowne Place. The said Satish Chandra Dhar, Santosh Chandra Dhar, Nitya Gopal Dhar and the heirs of Pratap Chandra Dhar, sometime on 23rd August, 1967, sold and delivered khas possession of 26, Lansdowne Place to Smt. Sohara Devi and Bholanath Shaw. After such purchase, they mutated their names in the records of Calcutta Municipal Corporation and were in peaceful possession and while being in peaceful possession of the same, partitioned the property amicably and the said Smt. Sohara Devi by way of partition became the owner of the land being 26B, Lansdowne Place which is described as schedule ‘A’ and Bholanath Shaw became the owner of 26C, Lansdowne Place, which is schedule ‘B’. Such deed of partition was registered on 15th March, 1968. (c) After purchase and after being in possession of the schedule ‘A’ property, Smt. Sohara Devi, out of her own funds, constructed a three-storied building thereon and was in peaceful possession of the same by living in a portion of the schedule ‘A’ property and letting out the balance of the schedule ‘A’ property to the tenants. (d) The said Sohara Devi, while in peaceful possession, in order to avoid further dispute among the plaintiff, defendant and the other heirs, executed a Will bequeathing the suit property in favour of the plaintiff and the defendant exclusively in their favour. (d) The said Sohara Devi, while in peaceful possession, in order to avoid further dispute among the plaintiff, defendant and the other heirs, executed a Will bequeathing the suit property in favour of the plaintiff and the defendant exclusively in their favour. (e) The said Sohara Devi died on January, 1980 and on her death, the defendant applied for letters of administration of the Will of Sohara Devi and obtained the same and after obtaining the letters of administration, the defendant delivered the plaintiff his share in the schedule ‘A’ property. (f) Consequently, the plaintiff was in occupation of the southern-side-flat in the ground floor and similarly, the defendant was in use and in possession of the southern-side-flat of the second floor of the schedule ‘A’. The rest of the flats, being four in numbers, were tenanted and the parties through tenants were in possession and enjoyment of the same and got their names jointly mutated in the Register of the Calcutta Municipal Corporation. (g) The tenants in the northern side of the second floor and southern side of the first floor of schedule ‘A’ property vacated and delivered vacant possession to the plaintiff and the defendant on receipt of shifting charge. The parties herein had jointly borne the entire shifting charges and other costs including cost of repairing and the painting of the aforesaid flats. (h) Bholanath Shaw was the owner of 26C, Lansdowne Place by virtue of the partition dated 15th March, 1968 and while in possession, settled in favour of the defendant and his wife the southern portion of 26C, Lansdowne Place and the said Bholanath Shaw died intestate on 25th January, 1984 and on his death the plaintiff and the defendant and his wife Smt. Radha Devi and his three daughters, namely, Smt. Santi Shaw, Smt. Malati Shaw and Smt. Chandrabati Devi became the owners as legal heirs and successors of the southern side of 26C, Lansdowne Place. The said portion was entirely tenanted which is described in schedule ‘B’. (i) The said Radha Devi, wife of Bholanath Shaw, and three daughters of Bholanath Shaw executed a deed of gift in favour of the plaintiff and the defendant on 23rd July, 1988 and delivered peaceful khas possession of the same, which is a portion of the schedule ‘B’ property. The said deed of gift was registered in the office of the District Registrar at Alipore. The said deed of gift was registered in the office of the District Registrar at Alipore. The said deed of gift was accepted by the plaintiff and the defendant and thus, they became the owners of the entire schedule ‘B’ property. (j) The plaintiff and the defendant are the joint tenants in respect of the property described in schedule ‘C’ of the plaint and they became joint tenants by virtue of devolution of interest from the original tenants, their father. (k) The said properties described in schedule ‘C’ were let out to the tenants and the defendant being the elder brother of the plaintiff, collected rents from the said tenants and was in the management and control thereof and he did not share any amount towards rent, so collected from the several tenants but misappropriated the same. (l) The plaintiff having felt inconvenience in enjoying property filed the suit for partition and claimed occupational charge of the two flats forcibly occupied by the defendant after the tenants vacated the flat in July, 1991 and September, 1994. The suit was contested by the defendant by filing written statement thereby denying the material allegation made in the plaint and the defence of the defendant may be summarised thus: (1) The defendant admitted that he was the executor of the Will left by Bholanath Shaw and also admitted the title of the plaintiff in the schedule ‘A’ property. According to the defendant, the plaintiff deliberately failed and neglected the property since 1992 and for his intentional avoidance, the defendant was carrying on repairing work in the schedule ‘A’ property by repairing of fittings and fixtures, etc. (2) The respective tenants of the two flats, as alleged, delivered possession to the defendant who paid the entire shifting charges to the tenants respectively amounting to Rs.25,000/- each and the plaintiff never paid any amount towards shifting charges as alleged at the time of leaving the flat by the tenants. On receiving vacant possession with the knowledge and consent of the plaintiff, the defendant repaired and made whitewashing, painting, and other works of the flats out of his own fund and he bore the litigation costs for evicting the tenants of the two flats. (3) Defendant also admitted the joint ownership of the plaintiff and the defendant in schedule ‘B’ property. (3) Defendant also admitted the joint ownership of the plaintiff and the defendant in schedule ‘B’ property. At the time of hearing of the suit, the plaintiff himself deposed in support of his plaint case while the defendant deposed in support of his defence. As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein dismissed the suit on the ground that the title of the parties was not established in the suit property and as such, there was no scope of passing any decree for partition and consequently, the prayer for account was also refused. Being dissatisfied, the plaintiff has come up with the present first appeal. After hearing the learned counsel for the parties and after going through the materials on record we find that the defendant has admitted the joint ownership of the property and as such, the learned Trial Judge was absolutely wrong in dismissing the suit on the ground that the plaintiff failed to prove joint ownership of the property. The evidence adduced in the suit coupled with the admission of the defendant is sufficient to conclude that the parties had eight annas share each in the suit property. The learned Trial Judge has further recorded that although the plaintiff admitted that father of the parties had other property those properties were not included in the present suit. It appears that the defendant even if stated in the written statement that there are other properties, he did not disclose the description of those properties and in such circumstances, the suit cannot be dismissed for non-inclusion of all the properties, even if, there is any other property left out. We, thus, find that it is a fit case where there should be a preliminary decree of partition for moiety share of the parties. It is also established form the evidence that the defendant is in management of the property and is looking after the eviction suits against the tenants. It appears that for eviction of a tenant shifting charge of Rs.25,000/- were paid to the tenant and according to the defendant, he alone paid that amount. Plaintiff though asserted that he also contributed half of that amount, no document has been filed showing payment of his share. It appears that for eviction of a tenant shifting charge of Rs.25,000/- were paid to the tenant and according to the defendant, he alone paid that amount. Plaintiff though asserted that he also contributed half of that amount, no document has been filed showing payment of his share. The defendant, on the other hand, contended that the plaintiff promised to pay his share but failed and it was agreed that so long he would not pay his share, the defendant would occupy the two flats vacated by the tenants. It appears from the record that the learned Court below did not deal with those parts of the evidence as it was of the view that the suit should be dismissed. In view of our finding that the suit should not be dismissed and that it should be decreed in preliminary form with the declaration that the parties have half share each, we send the matter back on remand for consideration of the question of account claimed by the plaintiff on the basis of evidence already on record and also such other evidence as may be produced by the parties on the question of account. The appeal is, thus, allowed. The judgement and decree passed by the learned Trial Judge are set aside. The suit is decreed in preliminary form by declaring eight annas share each of the parties with direction to consider the question of account on the basis of evidence already on record and also such further evidence as may be adduced by the parties. We make it clear that our observations on the question of accounts are tentative and not binding upon the Trial Court. In the facts and circumstances, there will be, however, no order as to costs.