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2015 DIGILAW 263 (TRI)

Tapas Biswas v. Sunil Kumar Biswas

2015-05-08

S.TALAPATRA

body2015
ORDER : This is an appeal under Section 100 of the CPC against the reversal finding returned by the judgment dated 09.02.2009, delivered in Title Appeal No. 40/2006 by the Additional District Judge, West Tripura, Agartala Court No. 3. The judgment delivered in the Title Suit (Partition) No. 38/2005 by the Civil Judge, Jr. Division, Court No. 2, Agartala, West Tripura has been reversed and the suit has been decreed. At the time of admitting the suit the following substantial questions of law were formulated by this Court: (i) Whether the impugned judgment of the First Appellate Court is beyond pleadings of the parties? (ii) Whether the impugned judgment is based on no evidence? [2] The facts that would essentially be required for appreciating the substantial questions of law may be introduced at the beginning. The appellants and the respondents in this appeal are the legal heirs of late Debendra Ch. Biswas. Debendra Ch. Biswas is survived by 4 sons and 2 daughters, namely, Anil Chandra Biswas, the plaintiff and the respondent herein, Kalipada Biswas since deceased, the defendant No. 1 now represented by his legal heirs the appellants No. 1a, 1b, 1c and 1d. Shri Sukumar Biswas, the appellant No. 2, Shri Sunil Kumar Biswas, since deceased, now represented by his legal heirs appellants No. 3a, 3b, 3c and 3d Smti Charu Bala Biswas, the defendant No. 8 and the appellant No. 8(a) herein and Smti Parul Bala Biswas (Das), the defendant No. 9, the appellant No.9 herein, Nikhil Biswas since deceased, represented by the legal heris, the appellants No. 4, 5, 6 and 7 and those appellants are the widow and sons of Nikhil Biswas. It is not indispute that the suit properties described in the schedule appended to the plaint has never been partitioned amongst the legal heirs of Debendra Chandra Biswas in terms of Hindu Succession Act. However, the plaintiff-respondent has asserted in the plaint that the respondents No. 8 and 9 had relinquished their right, title and interest and demand over any portion of the suit land. In the written statement filed by the appellants herein it has been asserted that a family arrangement was made by late Debendra Chandra Das during his life time amongst his sons and daughters for peaceful transformation. In the written statement filed by the appellants herein it has been asserted that a family arrangement was made by late Debendra Chandra Das during his life time amongst his sons and daughters for peaceful transformation. They have asserted categorically as under: “That, it is also admitted by the answering defendants what have been made in paragraphs 6 and 7 that during the life time of Lt. Debendra Chandra Biswas, he sold some portion of his total land and spent the considerable money for the expenses of the marriage of his daughters the defendant Nos. 8 and 9 and after the marriage the defendant in exchange of the contribution of their father Lt. Debendra Chandra Biswas in their marriage have relinquished their right of shares on the suit land in favour of their brothers, the plaintiffs and the defendant Nos. 13 and the legal heirs of deceased brother i.e. the defendant Nos. 47. It is also admitted that during the life time of Lt. Debendra Chandra Biswas, he considering the future disturbances amongst his sons and daughters and maintaining family peace after his death made a family arrangement distributing his rest of the landed property i.e. the suit land amongst his sons i.e. the plaintiff and the defendant Nos. 13 as well as the predecessor of the defendant Nos. 47 and as per his arrangement the plaintiff and the defendant Nos. 17 have been possessing their respective portion making necessary construction of huts thereon”. [3] The appellant-defendants, has further asserted that the plaintiffs and the defendant Nos. 17 meaning the appellants No. 1 a to the appellant No. 7 have been possessing the suit land in their respective portions as per distribution and arrangement made by Lt. Debendra Chandra Biswas. However, they have asserted that “....no legal partition have been made amongst the plaintiff and the defendant Nos. 17. The defendant Nos. 17 were ready to make amicable partition of the suit land but the plaintiff though claimed for amicable partition to the defendant Nos. 17 but raised some demand of getting the portion of the land to other defendants in exchange of the portion in his possession of less value, in which the defendants raised objection. The plaintiff cannot legally claim the portion of other defendants in possession in exchange of less valuable land under his possession as per the distribution made by Lt. 17 but raised some demand of getting the portion of the land to other defendants in exchange of the portion in his possession of less value, in which the defendants raised objection. The plaintiff cannot legally claim the portion of other defendants in possession in exchange of less valuable land under his possession as per the distribution made by Lt. Debendra Chandra Biswas in his life time. All the defendant Nos. 17 also as per oral distribution and arrangement have been possessing some portion of more value and some portions of less value and hence the plaintiff cannot claim in his share entire valuable portion...” On such assertion it has been denied by the defendants, that ever they resisted amicable partition of the suit land. For the purpose of adjudicating the suit, the following issues were framed by the trial court on appreciation of pleadings: (i) Is the suit maintainable in its present form and nature? (ii) Whether the plaintiff is entitled to get one fifth share of the suit property? (iii) Whether the plaintiff is entitled to get preliminary decree as prayed for? (iv) To what other relief/reliefs? [4] The respondent as the plaintiff has admitted in the evidence the Khatian No. 3313 which is the record of rights of the suit property (Exhibit1). But no document has been introduced in the evidence by the defendants, the appellants herein to reflect that there was any family arrangement. But they have adduced witnesses in support of their contention and rebut in order to the evidence of the plaintiff respondent. While deciding the issue Nos. 2 and 3 together the trial court has observed that the family arrangement by which the defendants, the appellants herein contended that the suit property was settled amongst the plaintiff and the defendant Nos. 17, as the defendants No. 89 relinquished their rights. It further appears that subsequently Khatian No. 325 which was finally published on 13.02.2005 has been placed in the evidence, which reflects the names of some of the legal heirs of late Debendra Chandra Biswas, viz Kalipada Biswas, Sukumar Biswas, Sunil Kumar Biswas, Anil Kumar Biswas and Nikhil Biswas. In the separate Khatian being Khatian No. 2116 the name of Anil Kumar Biswas has been recorded. [5] Exhibit2 is the map of the suit property. In the separate Khatian being Khatian No. 2116 the name of Anil Kumar Biswas has been recorded. [5] Exhibit2 is the map of the suit property. The plaintiff respondent has supported the plaint case by filing the examination-in-chief by affidavit under Order XVIII Rule 4 of the CPC. In the cross examination he has stated that he made the construction of the boundary fencing over the suit land without permission from the other coparceners and the suit land is being possessed by the coparceners according to their convenience. He has categorically denied that the suit land had been demarcated by amicable settlement. Sri Kalipada Biswas before his death has filed his examination-in-chief by affidavit under Order XVIII Rule 4 of the CPC and he stated the fact, in tune with the written statement. He stated that “....as the defendant Nos. 89 the sisters relinquished their rights of shares in favour of we, the brothers including the deceased brother namely Nikhil Biswas, we, the defendants 1 &3 and the deceased Nikhil Biswas and the plaintiff became the joint owners of the rest of the land left by late Debendra Ch. Biswas which is the suit land....”. “We, the defendants 1 to 3 also demand on several dates to the plaintiff for making an amicable partition deed in respect of the suit land after the death of our father but the plaintiff claimed some valuable partition of the other defendants since long after such oral amicable settlement partition for which the amicable partition and the deed in respect of the suit land could not be made” [6] In the cross examination he has admitted that he got 13 Gandas of land but he could not say the area of land fallen in the share of the other coparceners in the property, but he has admitted that the land was not equally partitioned, some got more and some got less. One Kumud Behari Banik (DW2) has stated that their father made amicable settlement/partition of the suit land amongst his sons including the legal heirs of the deceased son, Nikhil Biswas on demarcation. [7] For the defendants, another witness namely Sri Jadu Gopal Das (DW3) filed his examination-in-chief by affidavit and stated that the suit land was amicably distributed by late Debendra Chandra Biswas during his lifetime and accordingly, the plaintiff and the defendants No. 17 are occupying the respective parts of the land. [7] For the defendants, another witness namely Sri Jadu Gopal Das (DW3) filed his examination-in-chief by affidavit and stated that the suit land was amicably distributed by late Debendra Chandra Biswas during his lifetime and accordingly, the plaintiff and the defendants No. 17 are occupying the respective parts of the land. It is to be noted that from plaint or the written statement no description of the settlement is available to illustrate or support the so called family arrangement showing the parts of the land allotted against the plaintiff and the defendants No. 17 individually or otherwise but the defendants No. 23 have categorically stated that the family arrangement was followed by physical demarcation of the land. By the judgment dated 03.05.2006, the trial court has further observed as under: “....I have gone through the plaint/written statement and the cited decisions supra. It is an admitted position that plaintiff has admitted in para 7 of the plaint that during the life time of his father (Lt. Debendra Chandra Biswas) his father distributed his landed properties among his sons and according to that distribution plaintiff and defendant Nos. 1 to 7 have been possessing the said property. I perused the khatian of suit property which is marked as Exhibit No. – 3 on admission of both the parties. In the said Khatian No. 325 all the sons of Lt. Debendra Chandra Biswas have been shown as equal sharer of the suit property. As the plaintiff has admitted in Para 7 of his plaint that his father during his lifetime distributed the suit property, so further partition of the suit property is not necessary. I relied on the decisions cited supra. In both the decisions it has been held by the Hon’ble Courts that even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. It there was no oral partition only in that case the partition is necessary. In the present case, as I have already discussed, the suit property has been distributed during life time of the father of the plaintiff. As defendant Nos. 8 & 9 have relinquished their respective shares so they will not get any part of the suit land. Accordingly, the plaintiff has failed to prove his case to get preliminary decree as prayed for....”. As defendant Nos. 8 & 9 have relinquished their respective shares so they will not get any part of the suit land. Accordingly, the plaintiff has failed to prove his case to get preliminary decree as prayed for....”. [8] Being aggrieved by that judgment dated 03.05.2006, the plaintiff respondent filed an appeal under Section 96 of the CPC in the court of the District Judge, West Tripura, Agartala. However, the said appeal being Title Appeal No. 40/2006 got transferred to the Court of the Additional District Judge, West Tripura, Agartala Court No. 3 for disposal in accordance with law. [9] By the impugned judgment, the trial court judgment has been set aside observing that, “Partition for convenience of possession by itself cannot be stand in the way of a decree of partition so long it is not found that it was inconformity with the shares of the respective parties. Specification of shares in the settlement record (Khatian) does not necessarily prove partition. DW1, Kalipada Biswas in his cross examination admits that as per family arrangement suit land was not equally partitioned. Some get more and some get less shares in the suit property. He also admits in his cross examination that as the paw the legal the legal heirs are entitled to get equal share in the sit property. In Para 5 of written statement it has been stated that both plaintiff and defendants have been possessing the suit land in the respective portion as per distribution and arrangement made by Lt. Debendra Chandra Biswas. But no legal partitions have been made amongst the plaintiff and defendants. During the life time of Lt. Debendra Chandra Biswas neither the plaintiff nor the defendants had any interest in the suit property and therefore there is no question of partition because partition must be between persons who have joint interest in the property and in such a case registered document of transfer in the form of gift deed would be necessary. There was no ample evidence on record that both the parties had derived any title to the suit property. All these relevant and important aspects of the suit appear to have escaped the attention of the Court below. It is hereby declared that suit property as described in the schedule of the plaint are joint property of the plaintiff and defendant and plaintiff and defendant Nos. All these relevant and important aspects of the suit appear to have escaped the attention of the Court below. It is hereby declared that suit property as described in the schedule of the plaint are joint property of the plaintiff and defendant and plaintiff and defendant Nos. 1(a), 1(b), 1(c), 1(d) 2 and 3 are entitled to get 1/5th share each and defendant Nos. 4 to 7 are also entitled to get 1/5th share in total in the suit schedule property”. [10] The said judgment dated 09.02.2009 is under challenge in this appeal. Mr. D.R. Choudhury, learned counsel appearing for the appellants has submitted that while returning the finding that there had been no partition of the suit property, the first appellate court has granted the relief what has not been sought for by the plaintiff-respondent and grant of all such relief are beyond pleadings and as such is not permissible in law. [11] That apart, Mr.Choudhury, learned counsel appearing for the appellants has submitted that the Khatian (Exhibit-3) has not been appreciated while passing the impugned judgment. For these fatal illegalities, the impugned judgment is required to be interfered with by this Court. [12] In order to resist the submission of Mr Choudhury, learned counsel, Mr. D. Bhattacharjee, learned counsel for the respondent has submitted categorically that there is no document showing family arrangement. Khatian (Exhibit-3) is highly irregular and it does not provide any basis to contend that there had been any instrument by which the respondent Nos. 89, the defendants No. 89 in the suit, had relinquished their right. If the family arrangement is not prove then such relinquishment has to be based on the proper instrument of transfer. Mr. Bhattacharjee, learned counsel has further contended that from appreciation of the testimonies of DWs 2 and 3 it would be apparent that the witnesses had no knowledge what actually happened in respect of partition of the suit property. Both these witnesses have projected the case which has not even been pleaded either by the plaintiff or the defendants. These witnesses contended that there had been demarcation of the respective shares in the suit property. But no such pleading has been advanced by the defendants as to demarcation and distribution against the individual coparceners. Thus, Mr. Bhattacharjee, learned counsel appearing for the plaintiff respondent has contended that there is no irregularity in the impugned judgment. These witnesses contended that there had been demarcation of the respective shares in the suit property. But no such pleading has been advanced by the defendants as to demarcation and distribution against the individual coparceners. Thus, Mr. Bhattacharjee, learned counsel appearing for the plaintiff respondent has contended that there is no irregularity in the impugned judgment. [13] The objection raised by the appellants in respect of granting reliefs beyond the pleading appears at the first blush very attractive. But whether in a suit for partition, without determining the share of each of the coperceners, one individual share can be declared or demarcated by metes and bounds? The answer must be in the negative. As such, there is no substance in the said objection. [14] On scrutiny of the records and on appreciating the submission of the learned counsel appearing for the parties, this Court does not have any hesitation to hold that there had been no partition of the suit property amongst the legal heirs of late Debendra Chandra Biswas who was the original owner of the un-partitioned land. [15] The plaintiff and the defendant Nos. 17, now the appellants No. 1(a) to 7 are indisputably in possession on the different parts of the suit land according to their convenience, but there exists serious grievance and acrimony relating to the share of the suit property. Hence, even the defendants, the appellants herein, have stated categorically in the written statement that they also want that the joint property be partitioned. It is trite law that by convenience, the prescription of law cannot be frustrated. However, that can only be done by agreement consistent with the law. [16] There is no dispute that the appellants and the respondents are the coparceners of the suit property and from the records it has surfaced that the suit land has not been partitioned by demarcating individual plots on the basis of their share. Thus, there was no partition at all. [17] Hence, this Court does not find any apparent illegality on the face of the impugned judgment by way of interference. Thus, there was no partition at all. [17] Hence, this Court does not find any apparent illegality on the face of the impugned judgment by way of interference. But it is declared that the plaintiff and the original defendants No. 13 and 89, each would get 1/7th share of the suit property and the defendants No. 4, 5, 6 and 7, the respondents No. 4, 5, 6 and 7 herein, would jointly get the 1/7th share on account of Nikhil Chandra Biswas, since deceased. [18] It is needless to say that the legal heirs of Kalipada Biswas would be entitled to their share against the 1/7th share as is liable to be accounted against Kalipada Biswas since deceased. Similarly the legal heirs of Sunil Kumar Biswas would get their share from the 1/7th share as is liable to be accounted for Sunil Kumar Biswas since deceased. If the defendants No. 89 are inclined to relinquish their right they can only do so by transferring this shares in favour of the plaintiff and the other defendants in the manner as prescribed by law. Therefore, the observation of the first appellate court that it is hereby declared that the suit property as described in the Schedule of the plaint are joint property of the plaintiff and the defendants and the plaintiff and the defendants No. 1(a), 1(b), 1(c), 1(d) 2 and 3 are entitled to get 1/5th share each and defendant Nos. 47 are entitled to get 1/5th share in total in the suit property is hereby interfered with and set aside. [19] It is further directed that the plaintiff and the defendants shall amicably partition the land as per share declared by this court within 3 (three) months from the date of the decree, in default the plaintiff or any one of the defendants may approach the trial court for partition of the suit land by metes and bounds by drawing up the final decree on the report of the Survey Commissioner as would be engaged for that purpose. [20] In terms of the above, the preliminary decree be issued. In the result the appeal is allowed to a limited extent as indicated.