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2014 DIGILAW 580 (CAL)

Jaspal Singh Chandhak v. Ashoke Kr. Poddar

2014-07-03

DEBANGSU BASAK

body2014
Judgment DEBANGSU BASAK, J.:- The suit was for partition by metes and bounds of an immovable property and for accounts in respect of dealings of such immovable property. The plaintiff claimed himself to be the owner of undivided 10/12th share in the immovable property involved. The Defendant No. 1 was acknowledged by the plaintiff to hold the remaining 2/12th share in such immovable property. The plaintiff contended that the defendants other than the Defendant No. 1 had no manner of right, title and interest in respect of immovable property concerned. The plaintiff claimed that the original Defendant Nos. 2 and 3 who were subsequently substituted by their respective heirs and legal representatives consequent to their death were wrongfully and illegally collecting rents from the immovable property involved. The immovable property was fully tenanted. It was claimed that, the original Defendant Nos. 2 and 3 were not entitled to collect such rent and that, the collection of rent by them and subsequently by their heirs and legal representatives were wholly unauthorized. The plaintiff, therefore, joined the original Defendant Nos. 2 and 3 in the suit and claimed accounts from them. Three several written statements were filed by the three defendants. Consequent to the death of the Defendant No. 2 and 3 they were substituted by their respective heirs and legal representatives. The Defendant No. 1 in its written statement claimed that the immovable property involved was owned by one Nirode Behari Lahiri since deceased. By a registered deed of lease dated October 4, 1951, Nirode Behari Lahiri granted lease in respect of such premises to the original Defendant No. 3 for a period of fifteen years with an option for further five years commencing from September 1, 1951 and ending on August 31, 1966. By such deed of lease late Nirode Behari Lahiri had permitted the original Defendant No. 3 to construct a building thereon. Pursuant to such permission under the deed of lease the original Defendant No. 3 constructed a two storied building on the land situated at the immovable property concerned and inducted various tenants and collected rents from such tenants. It was claimed that, after expiry of the initial period of fifteen years the original Defendant No. 3 had tendered rent to Nirode Behari Lahiri, since deceased and, thereafter, to the heirs and legal representatives of late Nirode Behari Lahiri. It was claimed that, after expiry of the initial period of fifteen years the original Defendant No. 3 had tendered rent to Nirode Behari Lahiri, since deceased and, thereafter, to the heirs and legal representatives of late Nirode Behari Lahiri. The original Defendant No. 3 continued to remain in possession and occupation of the said premises. Nirode Behari Lahiri died in 1968 living him surviving seven sons and five daughters. Each heir and legal representative of late Nirode Behari Lahiri, therefore, became entitled to undivided 1/12th share in the said premises. It was claimed that, nine of the heirs of late Nirode Behari Lahiri, since deceased entered into an oral agreement with the original Defendant No. 3 for fresh lease. Such heirs and legal representatives allegedly failed to act in terms of the alleged oral agreement of grant of fresh lease. The defendants instituted a suit for specific performance being Title Suit No. 1307 of 1975 in the City Civil Court at Calcutta, for specific performance of such alleged oral agreement to grant fresh lease. The Defendant No. 1 purchased 2/12th share by to several registered deed of conveyance on August 6, 1975 and August 7, 1975. The Defendant No. 1 claimed that Ajit Kumar Lahiri one of the heirs of late Nirode Behari Lahiri entered into an oral agreement pursuant to which Ajit Kumar Lahiri applied to the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 for transfer of his undivided share. It was claimed that Ajit Kumar Lahiri had failed to perform his obligations requiring the Defendant No. 1 to institute a suit for specific performance in the City Civil Court at Calcutta being Title Suit No. 1722 of 1983. The Defendant No. 1 claimed that, after it acquired 2/12th share in the immovable property he became aware of a loan taken by Nirode Behari Lahiri from one Nripendra Nath Bagchi against deposit of title deeds of the immovable property. Such mortgagee filed a suit against Nirode Behari Lahiri for sale of the immovable property. A preliminary decree dated April 5, 1971 was passed in such suit. Since no payment was made in terms of the preliminary decree a final decree dated June 21, 1976 was passed directing the suit property to be sold by the Registrar, Original Side. The Defendant No. 1 applied in such suit for payment of such decreetal dues. A preliminary decree dated April 5, 1971 was passed in such suit. Since no payment was made in terms of the preliminary decree a final decree dated June 21, 1976 was passed directing the suit property to be sold by the Registrar, Original Side. The Defendant No. 1 applied in such suit for payment of such decreetal dues. Such application of the Defendant No. 1 was allowed on April 9, 1979. The Defendant No. 1 paid the decreetal dues. Consequently, 10/12th share in the immovable property continued to remain mortgaged to the Defendant No. 1. It was claimed that the heirs of Nirode Behari Lahiri could not have entered into an agreement for sale or sold the property to the present plaintiff in view of the status of the Defendant No. 1 as a mortgagee of the said premises. The Defendant No. 1 also claimed that, the heirs of late Nirode Behari Lahiri filed a partition suit against the Defendant No. 1 in the City Civil Court being Title Suit No. 205 of 1985 which was dismissed for default on April 10, 1986. The heirs of late Nirode Behari Lahiri subsequently filed another suit for partition against the Defendant No. 1 being Title Suit No. 1728 of 1986 which the learned City Civil Court at Calcutta found itself to lack jurisdiction to try. The said heirs, thereafter, filed the Partition and Administration Suit No. 514 of 1988 against Defendant No. 1 before this Hon’ble Court. The Defendant No. 1 claimed that none of the heirs of late Nirode Behari Lahiri was in possession of any part or portion of the suit premises and consequently could not have put the plaintiff in possession and occupation on the part of the premises involved. Furthermore, in terms of the deed of lease dated October 4, 1981 the original Defendant No. 3 had constructed two storied building which such building was owned exclusively by the original Defendant No. 3 under the terms and conditions of the deed of lease dated October 4, 1951 and, therefore, the plaintiff did not have any right to claim partition. The Defendant No. 1 went on to claim that in view of the diverse proceedings pending between the parties, inter se, and the heirs and legal representatives of late Nirode Behari Lahiri the plaintiff was not entitled to any relief in the instant suit. The Defendant No. 1 went on to claim that in view of the diverse proceedings pending between the parties, inter se, and the heirs and legal representatives of late Nirode Behari Lahiri the plaintiff was not entitled to any relief in the instant suit. In its written statement the original Defendant No. 2 claimed that the premises was impartable. According to the Defendant No. 2, the Lahiris had no right in respect of the immovable property and, therefore, the plaintiff did not derive any right. In its written statement the original Defendant No. 3 claimed himself to be a tenant in respect of the immovable property. He tried to trace his tenancy. He also referred to the various proceedings pending between the parties and claimed that the immovable property was impartable and that the plaintiff was not entitled to the reliefs as prayed for. Four issues were settled on January 31, 2014. The plaintiff produced himself as his witness. He was examined in chief and cross-examined. The Defendant No. 1 was the witness for the defendants. He was also examined in chief and cross-examined. After conclusion of the cross-examination of the Defendant No. 1 an application was made by the Defendant No. 1 for the purpose of recalling the witness of the Defendant No. 1. Such application being G.A. No. 1248 of 2014 was allowed by an order dated May 6, 2014. The defendant was allowed to recall his witness on the condition that the defendant will pay a cost of 50,000/-. The Defendant No. 1 did not pay the costs. The Defendant No. 1 did not recall his witness. Mr. Haradhan Banerjee learned Advocate appearing for the plaintiff contended that, the plaintiff was the 10/12th owner of the immovable property concerned. His client purchased 10/12th share of the immovable property by 10 several registered deed of conveyances all of which were proved in evidence and were marked as Exhibits ‘A’ to ‘J’. The plaintiff acknowledged the Defendant No. 1 to be the 2/12th share holder in respect of the immovable property. He referred to Exhibit ‘7’ which was the two several registered deed of conveyance in favour of the Defendant No. 1. He also referred to Exhibit ‘2’ which was the deed of lease. The plaintiff acknowledged the Defendant No. 1 to be the 2/12th share holder in respect of the immovable property. He referred to Exhibit ‘7’ which was the two several registered deed of conveyance in favour of the Defendant No. 1. He also referred to Exhibit ‘2’ which was the deed of lease. According to him, the deed of lease executed by late Nirode Behari Lahiri since deceased in favour of the Defendant No. 3 was for fifteen years and that such deed of lease had expired by efflux of time. The original Defendant Nos. 2 and 3 were wrongfully collecting rent from the tenants from out of the suit premises and, therefore, they were liable to account for the same. He contended referring to Exhibit ‘1’ being the order of redemption that the Defendant No. 1 became the mortgagee in respect of the 10/12th share of the immovable property concerned and not its owner. The ownership of the 10/12th share remained with the plaintiff. Since the plaintiff was the owner of the 10/12th share and the Defendant No. 1 was the owner of the balance 2/12th share and since both the two owners were not in a position to continue with their ownership jointly and since the plaintiff required a partition of his share in the immovable property concerned by metes and bounds, the plaintiff was entitled to a decree for partition as prayed for. He submitted that, the defence of the defendants that the deed of lease permitted the original Defendant No. 3 to construct and remove the building at the immovable property concerned was no defence at all. He referred to the various terms and conditions of the deed of lease. Such terms and conditions according to him, permitted the original Defendant No. 3 to remove the building construed at the immovable property without causing any damage to the immovable property at best. Removable of the building was a course which was impracticable according to him. He cited 2011 Volume 6 Supreme Court Cases page 780 (L.K. Trust v. EDC Ltd.) and referred to paragraph 61 and submitted that once a mortgagor was always a mortgagor till such time the mortgage was redeemed. Removable of the building was a course which was impracticable according to him. He cited 2011 Volume 6 Supreme Court Cases page 780 (L.K. Trust v. EDC Ltd.) and referred to paragraph 61 and submitted that once a mortgagor was always a mortgagor till such time the mortgage was redeemed. He relied on a passage at page 218 of the Law of Mortgage in India (Tagore Law Lectures, 1875-76 The law of mortgage by Sir Rashbehary Ghose) 5th Edition on the mortgagor’s right to redeem before foreclosure or sale. He also relied upon Volume 11 Calcutta Weekly Notes page 143 (Syed Ali & Ors. v. Najab Ali & Ors.) for the same proposition. Mr. Sakhya Sen learned Advocate for the defendants, took principally two defences. According to him, The Defendant No. 1 had redeemed the mortgage. Since the Defendant No. 1 was the mortgagee of the entirety of the property no partition can take place. He next contended that, the original Defendant No. 3 was the lessee in respect of the immovable property with a right to construct a building thereon. The original Defendant No. 3 had constructed a two storied building on the immovable property. The building, therefore, belonged to the original Defendant No. 3. The building was full of tenants. Therefore, no partition can take place. Mr. Sen referred to Exhibit ‘2’ which was the deed of lease granted by the late Nirode Behari Lahiri to the Defendant No. 3 and various clauses therein in support of his contentions. He drew the attention of the Court to the various recitals in the registered deed of conveyances executed by the heirs of late Nirode Behari Lahiri in favour of the plaintiffs and submitted that there was gross suppression in the deeds of conveyance as to the redemption of the mortgage and the existing lease. He relied on the cross-examination of the witness of the plaintiff and question no. 103. The pleadings, rival contentions of the parties, various documents marked as exhibits in the suit and the deposition of the witnesses as well as the materials on record were considered by me. The suit was for partition and for accounts. At this stage the share amongst the parties to the suit was required to be declared as also the question of accounts was required to be looked into. The suit was for partition and for accounts. At this stage the share amongst the parties to the suit was required to be declared as also the question of accounts was required to be looked into. The property involved was an immovable property being premises No. 5, Profulla Sarkar Street, Kolkata. The plaintiff claimed to be the 10/12th share of such immovable property and acknowledged the Defendant No.1 to be the remaining 2/12th share owner of such property. In support of the claim of ownership the plaintiff proved 10 registered deed of conveyance in his favour. Such registered deeds of conveyances were marked as Exhibits ‘A’ to ‘J’. By such registered deeds of conveyances the heirs and legal representatives of late Nirode Behari Lahiri sold and conveyed 10/12th share of the immovable property to the plaintiff. It was contended on behalf of the defendants that the ten several deed of conveyances executed by the heirs and legal representatives of Nirode Behari Lahiri since deceased in favour of the plaintiff did not have recitals of the redemption of the mortgage made by the original Defendant No. 1 as also the fact of the allegedly subsisting leasehold rights in favour of the original Defendant No. 3. Nirode Behari Lahiri had mortgaged the immovable property to Nripendra Nath Bagchi. In his examination-in-chief when asked about the present status of the immovable property at premise No. 5, Profulla Sarkar Street, Kolkata the Defendant No. 1 stated that he was the absolute owner of 2/12th share and the mortgagee of the rest 10/12th share. In cross-examination the witness of the Defendant No. 1 stated that the balance 10/12th share in such immovable property was purchased by the plaintiff. Exhibits ‘A’ to ‘J’ were the title deeds of the plaintiff. The plaintiff purchased 10/12th share in the premises on December 15, 1990. The Defendant No. 1 redeemed the mortgage on April 19, 1979. The title deeds by virtue of which the plaintiff purchased 10/12th share in the said premises were valid. The absence of recitals of the subsisting mortgage and the allegedly subsisting tenancy in respect of the said premises did not, in my view, render the title deeds of the plaintiff bad in law. The plaintiff acknowledged the Defendant No. 1 as the owner of the 2/12th share in respect of premises No. 5, Profulla Sarkar Street, Kolkata. The absence of recitals of the subsisting mortgage and the allegedly subsisting tenancy in respect of the said premises did not, in my view, render the title deeds of the plaintiff bad in law. The plaintiff acknowledged the Defendant No. 1 as the owner of the 2/12th share in respect of premises No. 5, Profulla Sarkar Street, Kolkata. Furthermore, the Defendant No. 1 had disclosed two several deed of conveyances dated August 6, 1975 and August 7, 1975 being Exhibit ‘7’ collectively. Considering the title deeds and the evidence on record, the parties the plaintiff was entitled to 10/12th share and the Defendant No. 1 was entitled to 2/12th share in premises No. 5, Profulla Sarkar Street, Kolkata. The shares of the parties to the suit in respect of the immovable property, namely, premises No. 5, Profulla Sarkar Street, Kolkata can therefore be safely declared as 10/12th share belonging to the plaintiff and the balance 2/12th share belonging to the Defendant No. 1. Then came the question as to whether the immovable property concerned was partable or not. On such question the plaintiff submitted that, the immovable property was partable. It was prayed on behalf of the plaintiff that a Commissioner of Partition should be appointed for the purpose of formulating a scheme of partition by metes and bounds between the parties to the suit in accordance with the respective shares. On behalf of the Defendant No. 1 it was contended that the suit property was impartable. Two grounds were advanced for the purpose of contending that the suit property was impartable. One of such ground was that the Defendant No. 1 was the mortgagee in respect of the 10/12th share and that the deed of conveyances executed by the heirs and legal representatives of late Nirode Behari Lahiri did not recite the factum of the mortgage in respect of the immovable property in such deed of conveyances. The defendants contended that a suit was filed by the original mortgagee for foreclosure of mortgage. In such suit the Defendant No. 1 applied and cleared the mortgage dues. The order allowing the Defendant No. 1 to clear the mortgage dues dated April 9, 1979 was referred to. The Defendant No. 1 in his examination-in-chief at question no. 33 stated that he had purchased 2/12th share in the property subject to the mortgage. In answer to question no. The order allowing the Defendant No. 1 to clear the mortgage dues dated April 9, 1979 was referred to. The Defendant No. 1 in his examination-in-chief at question no. 33 stated that he had purchased 2/12th share in the property subject to the mortgage. In answer to question no. 49 in his examination-in-chief the Defendant No. 1 stated that he was the absolute owner of 2/12th share and the mortgagee of the rest 10/12th share. It was claimed on behalf of the Defendant No. 1 that since the Defendant No. 1 was the mortgagee in respect of the balance 10/12th share and since the deed of conveyances executed by the heirs and legal representatives of the late Nirode Behari Lahiri in respect of the balance 10/12th share in favour of the plaintiff did not speak of any mortgage in respect of the immovable property. On behalf of the plaintiff it was contended that once a mortgagor was always a mortgagor till such time the mortgage was redeemed. The passage from Law of Mortgage in India (Tagore Law Lectures, 187576 The law of mortgage by Sir Rashbehary Ghose) 5th Edition, Syed Ali (supra) and L.K. Trust (supra) stated that once a mortgagor was always a mortgagor unless the mortgage was redeemed. In the instant case the Defendant No. 1 had paid the mortgage debt to Nripendra Nath Bagchi. The Defendant No. 1, therefore, was the mortgagee in place and stead of Nripendra Nath Bagchi in respect of premises No. 5, Profulla Sarkar Street, Kolkata. By reason of the Defendant No. 1 stepping into the shoes of Nripendra Nath Bagchi as the mortgagee and the Defendant No. 1 purchasing 2/12th share, the Defendant No. 1 has dual capacity in respect of premises No. 5, Profulla Sarkar Street, Kolkata. He is a mortgagee in respect of the entirety of the premises on one hand and the owner of 2/12th share in such premises at the same time. This dual capacity of the Defendant No. 1, however, would not permit the Defendant No. 1 to set up his rights as a mortgagee to deny a claim for partition by metes and bounds of a co-sharer in respect of the same premises in accordance with their respective shares. This dual capacity of the Defendant No. 1, however, would not permit the Defendant No. 1 to set up his rights as a mortgagee to deny a claim for partition by metes and bounds of a co-sharer in respect of the same premises in accordance with their respective shares. Partition of premises by metes and bounds in accordance with the respective shares of the co-sharer would not impede any right of the Defendant No. 1 as the mortgagee. He would continue to remain as the mortgagee in respect of the share of the premises allotted to the plaintiff by virtue of him being the mortgagee in respect of the entirety of the premises. A mortgage is a covenant running with the land. The plaintiff purchased 10/12th share on premises No. 5, Profulla Sarkar Street, Kolkata by several registered deed of conveyances. It could not be said that the plaintiff is not the owner of 10/12th share in such premises. The Defendant No. 1 having redeemed the mortgage in respect of the said premises is the mortgagee in respect of the entirety of the property which would include the 10/12th share therein also. Simplicitor because the Defendant No. 2 is the mortgagee in respect of such premises it could not be said that the property is impartable. The second ground which the Defendant No. 1 canvassed was that the property was impartable due to the existence of an alleged tenancy in respect of the property and the pendency of a suit for eviction in respect thereof. Since a suit for eviction against the tenants of the property in question was pending the contention that the property was impartable cannot be accepted. Nothing was placed with regard to the pending suits that any of them impeded a partition. None of the pending suits were an impediment to an exercise of partition. The Defendant No. 1 also took the shelter of the various terms and conditions of the deed of lease dated October 4, 1951 to submit that the immovable property was impartable. Reliance was placed on Clause 3 of the deed of lease dated October 4, 1951. Clause 3(iv) of such deed of lease provided that the Defendant No. 3 as the lessee under such deed of lease will be entitled to construct a building on the demised premises. Reliance was placed on Clause 3 of the deed of lease dated October 4, 1951. Clause 3(iv) of such deed of lease provided that the Defendant No. 3 as the lessee under such deed of lease will be entitled to construct a building on the demised premises. Clause 4 of the deed of lease dated October 4, 1951 provided that, all building and structures erected by the Defendant No. 3 on the demised premises will continue to belong the Defendant No. 3. It also provided that, on the determination of the lease by efflux of time or otherwise the Defendant No. 3 would be entitled to dislodge, dismantle, remove, take and carry away all buildings and structures without causing any damage to the demised land. It was contended that the Defendant No. 3 had constructed a building pursuant to such covenants of the deed of lease dated October 4, 1951. Therefore, according to the Defendant No. 1, the Defendant No. 3 was the owner of the building constructed. The Defendant No. 3 had inducted various tenants in terms of the deed of lease and was collecting rent. Therefore, it was impracticable that the immovable property could be partitioned by metes and bounds. The impracticability, according to the Defendant No. 1, was aggravated by the factum of the pendency of the suit for eviction. The contentions of the Defendant no. 1 cannot be accepted in the facts and circumstances of the case. The remedies under the Partition Act, 1893 was not limited to partition of an immovable property by metes and bounds only. The Act envisaged situations where an immovable property may not be partable by metes and bounds. In such scenario the Act provided for various remedies to the co-sharers of such immovable property when they did not want to enjoy their ownership jointly. The immovable property involved herein was of an area in excess of 10 cottahs. Whether or not the immovable property concerned can be partitioned by metes and bounds was an exercise which was required to be undertaken preferably by a Commissioner of Partition appointed for such purpose. The immovable property involved herein was of an area in excess of 10 cottahs. Whether or not the immovable property concerned can be partitioned by metes and bounds was an exercise which was required to be undertaken preferably by a Commissioner of Partition appointed for such purpose. Without such exercise being undertaken it would not be proper at this stage to arrive at a finding that the impracticability set up by the Defendant No. 1 due to the occupation of the building by tenants was such an impediment that it did not permit a division by metes and bounds. Assuming that the impracticability highlighted by the Defendant No. 1 or any other impracticability which may subsequently be discovered impeded a division of the immovable property concerned by metes and bounds, the other remedies provided under the Partition Act, 1893 can be availed of by the parties. The prayer of the plaintiff to have a Commissioner of Partition appointed for the purpose of exploring the possibility of partition by metes and bounds, therefore, cannot be rejected. In such circumstances a Commissioner of Partition is required to be appointed for the purpose of formulating a scheme of partition of premises No. 5, Profulla Sarkar Street, Kolkata amongst the co-sharers of the immovable property in accordance with their respective shares. Mr. Debojyoti Datta, Advocate, Bar Library Club, Kolkata is appointed as the Commissioner of Partition for such purpose. The Commissioner of Partition will convene a meeting amongst the plaintiff and the Defendant No. 1 for the purpose of framing a scheme for partition amongst the plaintiff and the Defendant No. 1 in accordance with the shares declared. For the purpose of undertaking such work, the Commissioner of Partition will be entitled to take the assistance of a surveyor and a valuer if required. The costs thereof will be borne by the parties, again in accordance with their shares in the property. The Commissioner of Partition will proceed with all expedition and on a day to day basis and will not give any unnecessary adjournment to any of the parties to complete the assignment. The Commissioner of Partition will complete his work and submit his report within four weeks from the date of communication of the order upon him. The prayer for accounts of the plaintiff remained. The original Defendant Nos. 2 and 3 collected rent from the premises. The Commissioner of Partition will complete his work and submit his report within four weeks from the date of communication of the order upon him. The prayer for accounts of the plaintiff remained. The original Defendant Nos. 2 and 3 collected rent from the premises. That was an admitted position as would appear from the deposition of the Defendant No. 1 both in his examination-in-chief as well as in cross-examination. The plaintiff was the owner of the 10/12th share of the premises. The plaintiff was, therefore, entitled to 10/12th share of the rent collected from the premises. The details of the rent collected by the original Defendant Nos. 2 and 3 from the premises were not available. In such circumstances the Commissioner of Partition appointed herein will also inquire into the quantum of rent collected by the original Defendant Nos. 2 and 3 from the premises on and from the date of purchase of 10/12th share by the plaintiff. The Commissioner of Partition will submit his report in this respect along with the other report. Likewise, the Commissioner of Partition will also proceed with the utmost expedition and will not grant any of the parties any unnecessary adjournment. The parties will be entitled to adduce evidence in respect thereof before the Commissioner of Partition. The Commissioner of Partition will be paid a remuneration of Rs.60,000/- to be shared by the parties in accordance with their respective shares in the property. There will be a preliminary decree declaring the plaintiff to have 10/12th share and the Defendant No. 1 to have 2/12th share in premises No. 5, Profulla Sarkar Street, Kolkata. The preliminary decree be drawn up expeditiously. C.S. No. 994 of 1990 will appear four weeks hence.