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2010 DIGILAW 893 (GAU)

Benoy Bhusan Paul v. Jyotsna Paul

2010-11-26

A.C.UPADHYAY, H.N.SARMA

body2010
JUDGMENT H.N. Sarma, J. 1. This first appeal is directed against the judgment and decree dated 24/6/03 passed by the learned Civil Judge, Sr. Division, No. 1, West Tripura, Agartala in Title (Partition) Suit No. 49/98 thereby decreeing the suit in preliminary form. 2. We have heard Mr. D. Chakraborty, learned Counsel for the Defendant No. 1/Appellant and Mr. AC Bhowmik, learned Counsel for the Plaintiffs/Respondents. Also heard Mr. P. Chakraborty, learned appearing on behalf of Respondent No. 12. 3. The principal Respondents as Plaintiffs instituted the Title (Partition) Suit No. 49/98 in the court of the learned Civil Judge, Sr. Division, West Tripura, Agartala praying for partition of the suit land described in the schedule of the plaint in equal shares between the Plaintiffs on one side and the Defendant No. 1 on the other side in meter and bounds and for separate possession of the respective shares by appointing a Survey Commissioner. The pleaded case of the Plaintiffs inter alia is that the Plaintiff No. 1 is the widow and the Plaintiff Nos. 2 and 3 are sons of Late Phani Bhusan Paul, who expired on 5/1/88. Late Phani Bhusan Paula and the Defendant No. 1 are own brothers. Both of them have acquired the properties involved in the suit by purchasing the same either in the name of Defendant No. 1 or in the name of proforma Respondents or in the name of their mother. In the year 1996, in respect of a dispute regarding possession of the Schedule-B land between the deceased Phani Bhusan Paul and the Defendant No. 1, a proceeding Under Section 145 Code of Criminal Procedure was initiated as MC No. 120/96. In the said proceeding, the possession of the disputed land was declared in favour of the Defendant No. 1 by the learned Magistrate which was challenged before the learned Sessions Judge who reversed the order passed by the Magistrate and the order was further challenged in Criminal Revision Petition No. 10/84 before the High Court. In the said proceeding, the possession of the disputed land was declared in favour of the Defendant No. 1 by the learned Magistrate which was challenged before the learned Sessions Judge who reversed the order passed by the Magistrate and the order was further challenged in Criminal Revision Petition No. 10/84 before the High Court. During the pendency of the aforesaid revision petition, a compromise was affected between Late Phani Bhusan Paul and the Defendant No. 1 wherein it was agreed that the properties described in the Schedule-A which are in the joint name or in the individual name shall be divided between the parties in equal share, that the properties described in Schedule-C which are in the name of the mother of the parties shall remain as 3 her absolute properties and that the right over the properties at Motor Stand Road, Agartala would be decided in terms of the decision to be rendered in T.A. No. 4/84 pending in the Court. It is further agreed that in terms of the said settlement all suites, appeals and criminal cases by and between the parties except TA No. 4/84 shall stand withdrawn. The Plaintiff also pleaded that the mother of Late Phani Bhusan Paul and the Defendant No. 1 having expired in the year 1990, both the two brothers have their equal share in the property described in the Schedule-C, left by their mother. It is alleged that the Defendant No. 1, in terms of the compromise have not partitioned the suit land in spite of repeated requests made by Late Phani Bhusan Paul and after his death by his legal heirs in spite of approach to that effect on several occasions by the Plaintiffs. The Defendant No. 2 to 9 are close relatives of the Plaintiffs and Defendant No. 1 and some of the suit land were purchased in the name of the proforma Defendants or their predecessor-in-interest but they do not have any right, title and interest over the suit land. The Defendant No. 10 to 12 are the legal heirs of Smt. Renuka Paul and they are sisters and they have not claimed the suit land and accordingly they were impleaded as proforma Defendants in the suit. Pleading in the aforesaid manner, the Plaintiffs prayed for partition of the suit land described in the Schedule claiming 50% share in their favour. 4. Pleading in the aforesaid manner, the Plaintiffs prayed for partition of the suit land described in the Schedule claiming 50% share in their favour. 4. Upon receipt of the summon of the suit, none of the Defendants, except Defendant No. 1 had contested the suit by filing written statement. The Defendant No. 1 in his written statement denied the allegations and contentions made by the Plaintiffs. The plea of the Defendant No. 1/Appellant is that the properties described in the Schedule-A, B and C are his personal properties and he purchased the major portion of Schedule-C land from his mother and a minor portion is sold to his sisters by the mother during her lifetime and hence the Plaintiffs are not entitled to partition of the suit land. The further contention of the Defendant No. 1/Appellant is that he has not voluntarily arrived at the compromise in the criminal revision petition and the said compromise is not yet have given effect to and he is not bound by the alleged compromise. It is also pleaded stated that neither Late Phani Bhusan Paul nor the Plaintiffs at any time approached him and took any steps for execution of any partition deed, as observed by the High Court while disposing the criminal revision petition. However, the Defendant admitted that the Schedule-D property is his joint property between him and Late Phani Bhusan Paul. In the above premises, the Defendant No. 1 prayed for dismissal of the suit. 5. On the basis of the pleadings of the parties, the learned trial court framed the following issues: A. Is the suit maintainable? B. Have the Plaintiffs right, title and interest over the suit land, if so, what are the respective shares each of the Plaintiffs and the Defendants in the suit land? C. Whether the entire joint property has brought in the hotch potch? D. Are the Plaintiffs entitled to get the decree? 6. During the course of hearing, the Plaintiff examined the Plaintiff No. 2 as PW.1 and proved as many as 17 documents in support of their claims. The Defendant on the other hand examined himself as DW.1 and proved one documentary evidence as Ext.A. The Defendant further examined one DW.2 to prove the sale deed No. 1-7240 dated 15/12/80 by which he purchased the same from his mother. 7. The Defendant on the other hand examined himself as DW.1 and proved one documentary evidence as Ext.A. The Defendant further examined one DW.2 to prove the sale deed No. 1-7240 dated 15/12/80 by which he purchased the same from his mother. 7. The learned trial court upon consideration of the evidence, both oral and documentary, and upon appreciation thereof, passed a preliminary decree allowing the partition of the suit land as claimed by the Plaintiffs, rejecting the defence plea, vide impugned judgment and decree on 24/6/93. Challenging the aforesaid judgment and decree, the present appeal is filed by the Defendant No. 1/Appellant. 8. In support of the appeal Mr. Chakraborty, learned Counsel for the Appellant submits that the Plaintiffs not having any right, title and interest over the suit property and their names not having been recorded in the revenue record, they are not entitled to claim for any partition. The suit property being self acquired property of the Appellant, the Plaintiffs have no right to claim for partition over such self acquired property. It is further contended that neither the Plaintiffs nor their predecessor-in-interest Late Phani Bhusan Paul have/had any right, title and interest over the suit property and Plaintiffs are not entitled to claim right over any part of the suit property on the basis of the compromise arrived at in the criminal revision petition No. 10/84 inasmuch as the terms of the compromise entered into between the parties were not implemented nor the Plaintiffs or their predecessor-in-interest during his lifetime made any attempt to execute the necessary deed of partition, as observed in the judgment passed in the criminal revision petition No. 10/84. Finally, it is contended that even if there is a compromise, on the basis thereof the Plaintiffs cannot claim any right over the suit property inasmuch as a title 5 cannot be vested upon a party only on admission without there having any effective instrument to that effect. In support of his contention Mr. Chakroborty has relied upon the decisions of the Apex Court reported in (2009) 9 SCC 689 and (2004) 8 SCC 353 . 9. Per contra, Mr. In support of his contention Mr. Chakroborty has relied upon the decisions of the Apex Court reported in (2009) 9 SCC 689 and (2004) 8 SCC 353 . 9. Per contra, Mr. AC Bhowmik, learned Senior Counsel for the Plaintiffs/Respondents submits that the suit properties were purchased by the predecessor-in-interest of the Plaintiffs as well as by Defendant No. 1 in the name of the Defendant No. 1 out of their common fund and it is a joint property between both of them. Accordingly, a compromise been affected between the parties which was filed before rendering the decision of the High Court in the criminal revision petition. The said compromise was duly acted upon by both the parties and in terms of the said compromise, the decision was rendered in criminal revision No. 10/84 which has been acted upon by the Defendant and these facts are pleaded in the plaint subsequently by way of amendment. It is also contended by Mr. Bhowmik that in the aforesaid situation, there is no dispute that the Plaintiffs are entitled to 50% share of the suit properties and considering all the relevant necessary facts and upon proper appreciation of evidence, both oral and documentary, the learned trial court has rightly passed the preliminary decree. 10. Rival contentions made by the learned Counsels for the parties received our due attention. Submissions of the learned Counsels led us to meticulously examine the compromise petition, the order passed by the High Court in the criminal revision petition No. 10/84 apart from other documents and pleadings of the parties including their statements made before the Court. It is an admitted fact that both the predecessor-in-interest of the Plaintiffs Late Phani Bhusan Paul and the Defendant No. 1 are full blood brothers. 11. Plaintiff No. 2 who was examined as PW.1 in his chief evidence has given a vivid description of the claim of the Plaintiffs and in fact he has narrated the entire facts as stated in the plaint. An emphasis has been laid down on the compromise petition arrived at between the father of PW.1 and Defendant No. 1 in the criminal revision petition No. 10/84 which involved the suit property. PW.1 further deposed that in spite of their requests, Defendant by adopting fraudulent techniques did not execute the compromise deed, as directed by the 6 High Court. PW.1 was cross-examined by the Defendant thoroughly. PW.1 further deposed that in spite of their requests, Defendant by adopting fraudulent techniques did not execute the compromise deed, as directed by the 6 High Court. PW.1 was cross-examined by the Defendant thoroughly. In his cross, he stated inter alia that he prayed for partition of the property not on the basis of partition deed but on the basis of previous partition. The suit land belonged to his father and his uncle Defendant No. 1 jointly. He denied the suggestion that the suit land was purchased in the name of Defendant No. 1 and purchased from his own fund and not from the joint fund or from the fund of his father. PW.1 was not asked anything regarding their requests to the Defendant No. 1 to execute the necessary deed of partition and the vital allegations made in-chief examination remains unrebutted. 12. DW.1 in his-chief examination reiterated the stand taken in the written statement and admitted that the Plaintiff No. 1 is the widow of his elder brother Late Phani Bhusan Paul and Plaintiff Nos. 2 and 3 are his sons and the Defendants are his relatives. He denied that he never lived in joint mess with his elder brother and both of them carried their business separately. He further stated that the landed property measuring 6½ gandas situated at Motor Stand Road, Agartala was purchased in the name of his elder brother and the Schedule-C property originally belonged to their mother out of which she had transferred an area of 5.78 acre to him by registered sale deed dated 5/12/80 and the remaining land in Schedule-C was transferred by his mother partly to Defendant No. 12 and partly to the mother of Defendant No. 12. He reiterated that the property in Schedule-A of the plaint along with other land was purchased by him and Defendant No. 8 jointly and after partition the land under Item No. 'A' of the plaint schedule was allotted to his share. He also admitted that he put his signature in the compromise petition filed in the criminal revision No. 10/84 as pleaded in the plaint as he was forced to put his signature by his lawyer and the lawyer of his elder brother and compromise was entered into without his consent. He also admitted that he put his signature in the compromise petition filed in the criminal revision No. 10/84 as pleaded in the plaint as he was forced to put his signature by his lawyer and the lawyer of his elder brother and compromise was entered into without his consent. In his chief evidence, he stated nothing as regards why the compromise deed was not executed as directed by the High Court in disposing the criminal revision petition. In his cross examination, he stated inter alia that he filed the criminal revision petition No. 10/84, on 16/5/86 he and his elder brother also filed a compromise petition setting forth seven numbers of terms of compromise and in terms of the that compromise the criminal revision petition was finally disposed of on the same date. He further stated that the suit relating to the land of Motor Stand Road, Agartala was also finally disposed of by the High Court in FA No. 4/84 vide judgment and order dated 1/7/96. He admitted that he has not filed any document to show that Schedule-C land was transferred to his sister by his mother. He admitted that the land of Schedule-A and the building thereon was possessed half share by himself and half share by the Plaintiffs. He denied the suggestion that the 7 compromise petition has not been acted upon by him for which the suit is required to be filed. He denied the claim of Plaintiffs having 50% share over the suit property. 13. DW.2 is the deed writer who wrote the sale deed No. 1-7240 dated 15/12/80 executed by Smt. Swarnamoyee Paul, the mother in favour of Defendant No. 1 who stated that the deed appears to be written by one P.C. Dutta, the deed writer. In his cross, he admitted that he was not an attesting witness of the said deed. 14. From the pleadings as well as statement of P Ws and D Ws, we find that it is an admitted position that the criminal revision petition No. 10/84 was filed by the Defendant No. 1/Appellant in which both the Defendant No. 1/Appellant as well as predecessor-in-interest of the Plaintiffs Late Phani Bhusan Paul submitted joint compromise petition setting forth certain terms and conditions. For proper appreciation of facts, the said compromise petition is quoted below: Crl. Revision No. 10 of 1984 Sri Binoy Bhusan Paul... Petitioner Vrs. For proper appreciation of facts, the said compromise petition is quoted below: Crl. Revision No. 10 of 1984 Sri Binoy Bhusan Paul... Petitioner Vrs. Sri Phani Bhusan Paul... Opposite party The Petitioner Sri Binoy Bhusan Paul and the opposite party Sri Phani Bhusan Paul have compromised and settled their disputes on the following terms. Terms 1. That the Petitioner and the opposite party are full blood brothers. The properties described in schedule 'A' below whether in the joint names or in any individual name shall be divided among the Petitioner and opposite party in equal share taking into consideration the valuation and the quantum of lands. 2. That the properties situated at Durjoynagar, mouja-Barjala, Agartala which are in the name of the mother of the parties, Smt. Swarnamoyee Paul wife of Late Bidhu Bhusan Paul shall remain her absolute property. Neither party has at present any claim over the said property. 3. That rights of the respective parties over the properties at 140, Motor Stand Road, Agartala shall be decided in T.A. No. 4/1984 now pending before this Hon'ble Court. Neither party's rights shall be prejudiced over the said properties because of this settlement. 4. That by virtue of this settlement all suits/appeals or criminal cases by and between the parties except the one relating to 140 , Motor Stand Road, Agartala property, shall stand withdrawn. 5. Parties shall bear their own costs throughout. 6. Arrears of taxes shall be borne by the parties equally. 7. That properties in Shiliguri, West Bengal will be divided in equal share between the parties. Under the circumstances stated above, it is humbly prayed that your Lordships would be graciously pleased to pass such order for disposal of the cases according to this petition. And For this gracious act of kindness your humble parties shall as in duty bound ever pray. Verification Sri Phani Bhusan Paul and Sri Binoy Bhusan Paul do hereby verify that the statements made above are true to my knowledge and we sign this verification today the 16th day of May, 1986 in the Court Compound at Agartala. And For this gracious act of kindness your humble parties shall as in duty bound ever pray. Verification Sri Phani Bhusan Paul and Sri Binoy Bhusan Paul do hereby verify that the statements made above are true to my knowledge and we sign this verification today the 16th day of May, 1986 in the Court Compound at Agartala. Sd/- Sri Phani Bhusan Paul Sd/- Sri Binoy Bhusan Paul 16/5/86 Schedule-A Within district West Tripura, Agartala, Mouja- Rasambagan, bounded by- North- Lalit Shil and others South- The Howrah river and pass Baraj East- Indra Sarkar and others West- Resham Bagan Road and Satyendra Paul and others within this lands measuring about 30(thirty) kanis. Sri Binoy Bhusan Paul shall demarcate the lands within Sunday and Sri Phani Bhusan Paul shall have the option of choosing either of the properties. Within district Tripura West , Agartala Town, 8, Mantribari Road, Agartala , bounded by- North- Municipal Drain and their Ex-Major H.C. Dutta and Ors. South- Chitta Ranjan Paul and others East- Late Gangaprasad Sharma and another West- Municipal Road and then Mantribari Road Within this lands measuring about 6(six) gandas. Both the parties shall have their share to their present possession. The partition shall be made by Saturday, the 17th May, 1986 by both the parties jointly. Sd/- Sri Phani Bhusan Paul Sd/-Sri Binoy Bhusan Paul 15. Upon filing of the aforesaid compromise petition, both the parties were examined by the learned Judge and on being satisfied disposed of the criminal revision petition vide order dated 16/5/86, which is quoted herein in below: PRESENT HON'BLE Mr. JUSTICE K. LAHIRI ORDER 16.5.86.: The parties appear in person along with their learned Counsel Shri S. Deb and Shri M.C. Chakraborty. They state that they have settled all their disputes and differences and the terms of settlement have been set out in the Petitioner marked 'X'. They shall faithfully and diligently comply with the terms and conditions of the compromise petition filed before the Court. As desired by the party, I direct that in pursuance of this petition the proceeding under Section 145, Code of Criminal Procedure be quashed. The proceeding is quashed. The parties shall file necessary application to withdraw or compromise all the subsisting/existing suites and cases between them. As desired by the party, I direct that in pursuance of this petition the proceeding under Section 145, Code of Criminal Procedure be quashed. The proceeding is quashed. The parties shall file necessary application to withdraw or compromise all the subsisting/existing suites and cases between them. In pursuance to the agreement the parties shall execute the necessary effective deed of partition delinesting the exact and precise properties to which each shall be entitled. However, the parties shall be bound by the terms and conditions of the agreement marked 'X'. I am extremely happy that both the parties have settled the matter amicably. They are brothers. In consequence of the settlement both of them will be gainers. I put on records my appreciation for the trouble and pain taken by Shri S. Deb with Shri P.K. Biswas, learned Counsel for the Petitioner and Shri M. Chakraborty, learned Counsel for the opposite party in making tireless efforts to cause an effective settlement between the parties. Only due to their efforts, it appears, the settlement has been made possible. They have acted in the highest tradition the legal profession who are called the members of "the noble profession". They have acted as "social physicians". In the result, the petition is disposed of in terms of the above order. The proceeding under Section 145 of the Code is quashed. Sd/- K. Lahiri, Judge. 16. The order dated 16/5/86 disposing the criminal revision petition, on the fact of it demonstrate the fact that the Defendant No. 1/Appellant and the predecessor-in-interest of the Plaintiffs Late Phani Bhusan Paul were personally present before the Court along with their learned Counsels and the learned Single Judge was duly satisfied about the effect of compromise in terms of the compromise petition. In the said order, with a view to avoid any possibility of conflict or difference at a later point of time, the learned Single Judge took an extra care to the effect that a deed of partition delinesting the exact and precise properties to which each shall be entitled to shall be executed. The learned Single Judge also observed that the parties shall be bound by the terms and conditions of the agreement. The learned Single Judge expressing happiness and satisfaction also recorded words of appreciation in favour of the learned Counsels and resolving the dispute between the two brothers. 17. The learned Single Judge also observed that the parties shall be bound by the terms and conditions of the agreement. The learned Single Judge expressing happiness and satisfaction also recorded words of appreciation in favour of the learned Counsels and resolving the dispute between the two brothers. 17. Upon appreciation of the evidence both oral and documentary including the aforesaid fact of compromise arrived at between the parties, the conscience of the Court is absolutely clear that both the brothers compromised their disputes and differences relating to the properties mentioned in the schedules of the plaint to the effect that each one of them would get 50% share thereof. Although it was not one of terms of the compromise petition that the parties would be required to execute further documents but the learned Single Judge sensing the possibility of certain eventualities which is found to be true now, took such extra care of executing a deed but with the specific observation that the terms of the compromise would be binding upon the parties. 18. Although, the Defendant No. 1/Appellant took the plea that the suit properties were purchased by investing his own fund and those are his self acquired properties, but there is no iota of evidence to that effect and the Defendant No. 1/Appellant hopelessly failed to prove such claim. On the other hand from the evidence of the Plaintiffs and the documents exhibited, it is crystal clear that the properties in question were joint properties between the parties and in spite of repeated requests the Defendant No. 1/Appellant refrained from executing the deed of partition delinesting the exact and precise properties to which they would be entitled to. For such conduct and attitude so exhibited by the Defendant No. 1/Appellant, the Plaintiffs had to bring the suit of partition. 19. There is no dispute to the ratio of the decisions rendered by the Apex Court as referred to by Mr. Chakraborty, learned Counsel for the Appellant in support of his contention. But in the instant case, the facts as emerged and borne out from the records, discloses that the dispute has already been settled between the parties by executing the deed of compromise. Chakraborty, learned Counsel for the Appellant in support of his contention. But in the instant case, the facts as emerged and borne out from the records, discloses that the dispute has already been settled between the parties by executing the deed of compromise. When a compromise is affected between the parties, the rights and liabilities of the parties are regulated and guided by the terms of the compromise and not by any other deed unless the compromise is found to be illegal or unvalid in the eye of law. Although the Defendant No. 1/Appellant at a much later stage after filing of the suit declared that the said compromise was affected by putting force on him and the same is unvalid, but such facts was not at all proved and as mentioned in the order of disposal of the criminal revision petition, the Appellant was present personally in the High Court and admitted about the compromise. 20. The Appellant got the criminal revision petition closed by entering into compromise with the predecessor-in-interest of the Plaintiffs in the High Court and after getting the benefit thereof now wants to resile him from the same, but he miserably failed in his attempt. This conduct of the Defendant No. 1/Appellant cannot be accepted to be a proper in the eye of law. The terms of compromise have already been affected not only in disposing the criminal revision but also in respect of the enjoyment of the properties in respect of the property of Motor Stand Road, Agartala as per the decisions rendered in F.A. No. 4/84. In view of the above proved facts, the Defendant No. 1/Appellant is stopped from raising further plea that the compromise was not at all effected or it was not a valid one. 21. We may add herein that the learned Single Judge while disposing the criminal revision petition has expressed his utmost satisfaction in compromise of the dispute between the two brothers but it was later on sought to be aborted by such a desperate attempt made by the Defendant No. 1/Appellant going to the extent that he has not compromise the disputes. 22. As regards the claim of Defendant/Respondent No. 12, the said Respondent neither appeared before the trial court nor filed any written statement raising his plea. 22. As regards the claim of Defendant/Respondent No. 12, the said Respondent neither appeared before the trial court nor filed any written statement raising his plea. The claim of sale of land to the mother of the Defendant No. 12 has been denied by the Plaintiffs and no such document is on record to that effect. In such a situation, we are not inclined to accept the plea of having any share over the suit land so made by the Defendant No. 12. 23. The elaborate discussions made hereinabove leads us to conclude that the appeal is liable to be dismissed and it is dismissed accordingly but with all costs all throughout in favour of the Plaintiffs to be borne by the Appellant. Appeal dismissed.