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2008 DIGILAW 352 (CAL)

Satyabrata Mukherjee v. Debrabrata Mukherjee

2008-03-31

MANMOHAN SARIN

body2008
Judgment : BHASKAR BHATTACHARYA, J. (1). THIS first appeal is at the instance of the defendant nos. 1 and 2 in a suit for partition and is directed against the judgment and decree dated May 31, 2001 passed by the learned Civil Judge, Senior Division, 10th Court, Alipore, in Title suit No. 32 of 1994 thereby passing a preliminary decree in favour of the plaintiff by declaring one-fifth share of the plaintiff in the suit property which consists of ground, first and second floor of Premises No. 18/67b, Dover Lane, Calcutta ? 29. (2). THERE is no dispute that one Dr. Rishibar Mukherjee was the original owner of a building consisting of the ground and the first floor only at Premises no. 18/67b, Dover Lane. The said Dr. Rishibar Mukherjee died intestate on April 1, 1985 leaving his widow and four sons as his sole and legal representatives who are parties to this appeal. (3). THE abovementioned Title Suit No. 32 of 1994 was initially filed by the widow, the eldest son, namely, Debabrata Mukherjee and another son, being subrata Mukherjee by making other two sons, namely, Satyabrata Mukherjee and Kalyanbrata Mukherjee, as the defendant nos. 1 and 2 respectively. According to the original plaintiffs, the defendant nos. 1 and 2 refused to amicably partition the property and they were feeling inconvenience in using the property jointly with the defendants. (4). SUBSEQUENTLY, the widow and one of the sons, namely, Satyabrata, withdrew themselves from the capacity of the plaintiffs and were transposed to the category of the defendants and thus, the original plaintiff no. 2, the eldest son, alone proceeded with the said suit against the other heirs of his father. (5). AFTER the two original plaintiffs were transposed to the category of the defendants, the surviving plaintiff came up with an application under Order VI rule 17 of the Code of Civil Procedure thereby praying, among other, for the change of the description of the schedule of the suit property by describing the same as a three-storied building in place of a two-storied building as originally pleaded. The Court allowed such application. (6). THE suit was contested by the defendant nos. The Court allowed such application. (6). THE suit was contested by the defendant nos. 1 and 2 by filing written statement thereby denying the material allegations made in the plaint and the main dispute was as regards the amendment of the plaint wherein the suit property was described as the three-storied building instead of the two-storied building originally pleaded. According to the defendant nos. 1 and 2, they at their own cost, constructed the second floor of the building with the consent of all the co-sharers and thus, they had absolute right over the second floor of the said building. They also prayed for counterclaim for declaration of their absolute title over the second floor of the said building. (7). THE learned Trial Judge by the judgment and decree impugned herein came to the conclusion that the defendant nos. 1 and 2 did not get any deed of gift or written document from their father for constructing the second floor for their own interest and at the same time, it was established that the plaintiffs or the defendant nos. 3 and 4 had not relinquished their share in respect of the second floor of the suit building and, therefore, according to the learned Trial judge, the second floor was constructed without the consent of the other cosharers and the same was illegal and, therefore, the other co-sharers than the defendant nos. 1 and 2 will also get title over the second floor of the property. (8). BEING dissatisfied, the defendant nos. 1 and 2 have 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 it has been well established from the materials on record that the second floor was constructed by the defendant nos. 1 and 2 at their own cost. The plaintiff has also admitted in his evidence that he used to visit the suit property from time to time, as he was ordinarily posted outside Calcutta and he found that the construction of the second floor was going on. He admitted that he did not contribute any money for construction of the second floor of the property. Even Subrata, who was the original plaintiff no. He admitted that he did not contribute any money for construction of the second floor of the property. Even Subrata, who was the original plaintiff no. 3 and was transposed to the category of the defendant stated in his evidence that in the original plaint the suit property was described as a building consisting of the ground floor and the first floor and the moment the plaintiff no. 2 told him the he wanted to include the second floor as the subject-matter in the partition suit, he and his mother prayed for transposing themselves to the category of the defendants. The said brother further stated that the surviving plaintiff, his wife and sons inflicted physical and mental torture upon him, as he did not agree to include the second floor in the plaint schedule. He also admitted that the second floor was exclusively constructed by the money of the defendant nos. 1 and 2. (9). IT appears that the plaintiff and the other co-sharers never made any protest while the defendant nos. 1 and 2 were making construction of the second floor. (10). WE are, therefore, convinced that this is a case where construction of the second floor was made by the defendant nos. 1 and 2 with their own money with tacit consent with the other co-sharers including the plaintiff and, therefore, the second floor should be treated to be "an improvement of the suit property by some of the co-sharers with the consent of the others". It is needless to mention that the defendant nos. 1 and 2 jointly having two-fifth share in the schedule of the suit property as it originally stood, they have utilized the roof of the first floor for the construction and the value of the roof of the first floor is well within their share in the entire property inherited from the father and accordingly, we modify the preliminary decree granted by the Trial Court to this extent that the second floor should be treated as an improvement made by the defendants nos. 1 and 2 at their own cost with the consent of the other co-sharers and should be allotted exclusively to the defendant nos. 1 and 2. In respect of the ground and the first floor of the building, all the parties will have one-fifth share. 1 and 2 at their own cost with the consent of the other co-sharers and should be allotted exclusively to the defendant nos. 1 and 2. In respect of the ground and the first floor of the building, all the parties will have one-fifth share. The Commissioner while making allotment in respect of the ground floor and the first floor will deduct the valuation of the roof of the first floor from the two-fifth share of the defendant nos. 1 and 2 as they have utilised the entire roof for their construction. Similarly, over the roof of the second floor, all the parties will have joint right. If any further construction over second floor has already been made by the defendant nos. 1 and 2, the roof of that constructed portion on the second floor will be owned by all the parties. (11). WE modify the preliminary decree to the extent indicated above. The appeal, thus, is allowed to the extent mentioned above. In the facts and circumstances, there will be, however, no order as to costs. In view of the disposal of this appeal itself, the pending applications have become in fructuous and those are disposed of accordingly.