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2008 DIGILAW 874 (CAL)

Rabindra Nath Das v. Shibnath Das

2008-08-28

B.Bhattacharya, Rudrendra Nath Banerjee

body2008
JUDGMENT: 1. THIS first appeal is at the instance of a plaintiff in a suit for partition and is directed against the judgment and decree dated 20th February, 2001 passed by the Civil Judge, (Senior Division), Sealdah, in Title Suit No. 142 of 1995, thereby declaring the one-fourth share of the parties in the suit property. 2. BEING dissatisfied, the plaintiff has come up with the present appeal. Mr Roychowdhury, the learned senior advocate appearing on behalf of the appellant, did not dispute any findings of the learned Trial Judge except his finding with regard to Serial No. 3 of the Schedule, which is 23, South Sinthee road. It appears that the learned Trial Judge in the preliminary decree has declared that the area of the premises No. 23, South Sinthee Road is more or less 5 bighas and half. According to Mr Roychowdhury, the learned Trial Judge totally misread the materials on record in arriving at such conclusion. Mr roychowdhury contends that premises No. 23, South Sinthee Road contains 5 bighas and half of land and in addition to that, there are further land of 40 cottahs which are meant for construction of common passage. Mr. Roychowdhury submits that the learned Trial Judge erred in law in not passing any decree in respect of that common passage. Mr Palit, the learned advocate appearing on behalf of the respondent, on the other hand, has opposed the aforesaid contentions and has contended that it would appear from the materials on record that the said Item No. 3, namely, the premises No. 23, South Sinthee Road, originally contained more or less 8 bighas of land and a godown but subsequently, all the parties transferred 29 decimals of land out of the said premises to four different persons and for selling that 29 decimals of land, further 40 decimals of land were allotted for common passage of the original owners and those four different purchasers. Mr Palit, therefore, submits that the common passage for the parties to this proceeding as well as the other four outsiders cannot be included in the present suit. 3. AFTER hearing the learned counsel for the parties and after going through the materials on record, we find from Exbt. Mr Palit, therefore, submits that the common passage for the parties to this proceeding as well as the other four outsiders cannot be included in the present suit. 3. AFTER hearing the learned counsel for the parties and after going through the materials on record, we find from Exbt. "s that out of eight and half bighas of land, 29 cottahs were sold to four outsiders by all the owners in the year 1978 and 40 cottahs were allotted for the construction of the common passage and as such, the remaining land measuring five bighas and one cottah is now really held by the parties exclusively. The learned Trial Judge, therefore, did not commit any illegality in restricting the decree only to the portion of the land still held by the parties to the present proceedings exclusively. 29 decimals of land having been sold to four outsiders and 40 decimals having been kept as common passage for those outsiders and the parties to the proceedings, those 40 decimals of land cannot be partitioned among the original owners of the land and those should remain as common passage along with those four purchasers. 4. MR Roychowdhury, at this stage, strenuously contended that in that event, we should remand the matter back to the Trial Court for ascertaining the exact amount of the land situated within Item No. 3, namely, 23, South Sinthee road. We, have already pointed out there is no dispute that plaintiff and defendants jointly transferred 29 decimals to the four outsiders and 40 decimals were kept as common passage. The remaining lands in 23, South Sinthee Road are still held by the parties to the present litigation and as such, there is no dispute as regards the identity of the land still held jointly in 23, South Sinthee road excluding the said common passage with the outsiders. Therefore, in case of failure of amicable partition by metes and bounds by the parties themselves, at the time of commission work for the allotment in the final decree proceedings, the parties will be at liberty to produce the deeds by virtue of which 29 decimals of land were sold to the outsiders and forty decimals were kept as common passage for those outsiders as well as parties. Excluding those 69 decimals of land, the remaining portion of 23, South Sinthee Road will be allotted by the learned commissioner in this proceeding. 5. IT is needless to mention that in the present suit, the land already sold in favour of four other persons cannot be the subject-matter and at the same time, the common passage of forty decimals of land meant for those persons and the parties to this proceeding cannot also be the subject-matter of the present suit. 6. WE, thus, dispose of this appeal by clarifying the preliminary decree impugned herein as mentioned above. In the facts and circumstances, there will be, however, no order as to costs.