Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 50 (CAL)

Ratan Bala Ghosh v. Gopal Ghosh

2015-01-27

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

body2015
JUDGMENT JYOTIRMAY BHATTACHARYA, J. This first appeal is directed against a judgment and decree of dismissal of the partition suit passed by the Learned Assistant District & Sessions Judge, Kalna, Burdwan on 29th April, 1988 in Title Suit No.7 of 1983 at the instance of the plaintiffs/appellants. The plaintiffs/appellants prayed for partition of various properties, mentioned in schedule ‘A’ schedule ‘B’ and schedule ‘C’. Schedule ‘A’ and schedule ‘C’ comprise of immovable properties. Schedule ‘B’ comprises of movable properties. They claimed that originally the suit properties mentioned in schedule ‘A’ ‘B’ and ‘C’ of the plaint belonged to Krishna Chandra Ghosh, who died intestate in the year 1316 B.S. leaving behind 5 sons, namely, Sashi Bhusan Ghosh, Kunja Behari Ghosh, Bepin Behari Ghosh, Ashutosh Ghosh and Panchanan Ghosh apart from his widow Biraj Mohini. The plaintiffs are the heirs of the youngest son of Krishna Chandra Ghosh, namely Panchanan Ghosh. The defendant Nos. 1-19 are the heirs of the other four sons of the said Krishna Chandra Ghosh. The defendant Nos. 21-28 are the purchasers of certain properties mentioned in ‘A’ schedule of the plaint from some of the heirs of Krishna Chandra Ghosh. The plaintiffs/appellants claimed that after the death of Krishna Chandra Ghosh, disputes and differences developed amongst the family members of the heirs of the said Krishna Chandra Ghosh and as such the heirs of Krishna Chandra Ghosh mutually partitioned the ‘A’ schedule property for the convenient enjoyment of all those properties by the descendants of Krishna Chandra Ghosh. They further claimed that while making such arrangement, no property was given exclusively to the widow of Krishna Chandra Ghosh, namely, Biraj Mohini. She was given the properties described in schedule ‘C’ for her maintenance during her life-time. The plaintiffs/appellants further claimed that the ‘A’ schedule properties were never partitioned by metes and bounds amongst the descendants of Krishna Chandra Ghosh, who mutually agreed to enjoy their respective allotments for convenient use and enjoyment thereof. She was given the properties described in schedule ‘C’ for her maintenance during her life-time. The plaintiffs/appellants further claimed that the ‘A’ schedule properties were never partitioned by metes and bounds amongst the descendants of Krishna Chandra Ghosh, who mutually agreed to enjoy their respective allotments for convenient use and enjoyment thereof. They further claimed that under the said arrangement, Sashi Bhusan received landed properties of 9 acres and 11 decimals mentioned in schedule A(I) of the plaint, Kunja Behari received 7 acres and 16 decimals as mentioned in schedule A(II), Bepin Behari received 4 acres and 89 decimals mentioned in schedule A(III), Ashutosh received 8 acres and 32 decimals as mentioned in schedule A(IV) and Panchanan received 7 acres and 96 decimals as mentioned in schedule A(V) inclusive of an area of 3 acres and 32 decimals of ‘C’ schedule property baring plot No. 683(0.14) decimals and plot No.634(0.16) decimals thereunder. Both the C.S record of rights and R.S record of rights were prepared showing those 5 sons of Krishna Chandra Ghosh as owners of their respective allotments and their separate possession in respect of their respective allotments were also recorded in column No.23 of the C.S record of rights. They claimed that the said arrangement cannot be regarded as an equitable partition as allotment of land was made to the descendants of the said Krishna Chandra Ghosh disproportionate to their share which they inherited from their predecessor in the suit property and such disproportionate allotment according to the plaintiffs/appellants was made by mistake and as such they claimed that the said mutual arrangement which was made between the parties does not amount to partition by metes and bounds. They thus claimed partition of the ‘A’ schedule property by metes and bounds after declaring their 1/5th share in the suit property which they inherited from their predecessor in interest, namely, Panchanan Ghosh, being the youngest son of Krishna Chandra Ghosh. Similarly, they claimed 1/5th share in the ‘B’ schedule property which comprises of movable properties belonging to Krishna Chandra Ghosh. Similarly, they claimed 1/5th share in the ‘B’ schedule property which comprises of movable properties belonging to Krishna Chandra Ghosh. They further claimed that on the death of Biraj Mohini, the properties described in schedule ‘C’ of the plaint devolved upon all the 5 sons of the said Krishna Chandra Ghosh who inherited the same in equal share and similarly on the death of the plaintiffs’/appellants’ father, namely, Panchanan Ghosh being the youngest son of Krishna Chandra Ghosh, they jointly inherited the share of Panchanan Ghosh in ‘C’ schedule property. It is stated that in an earlier suit filed by the defendant No.1 and 2 herein as plaintiff against the other heirs of the said Krishna Chandra Ghosh, including Panchanan Ghosh, the properties described in schedule ‘C’ of the plaint were partitioned amongst the 5 sons of Krishna Chandra Ghosh and the said partition decree which was passed by the learned Trial Judge was affirmed by the First Appellate Court and was also affirmed by this Hon’ble Court in Second Appeal filed by the said Panchanan Ghosh. The plaintiffs/appellants thus claimed that if partition of the ‘C’ schedule property cannot be allowed because of the previous partition, then such partition should be reopened as the previous partition was not made by metes and bounds in accordance with the shares of the co-sharers therein. Thus, they filed the instant suit, praying for partition of the properties left by Krishna Chandra Ghosh mentioned in schedule ‘A’, schedule ‘B’ and schedule ‘C’ of the plaint. The defendants contested the said suit by filing written statements. One of such written statements was filed by the defendant Nos. 1-19 and the other written statement was filed by defendant Nos. 21-28 being the subsequent purchasers of some of the properties mentioned in schedule ‘A’ of the plaint from some of the co-sharers of the plaintiffs/appellants. In short, all of them contended that the relief by way of partition of ‘A’ schedule properties cannot be granted as the ‘A’ schedule properties were partitioned amongst the heirs of Krishna Chandra Ghosh, the original owner thereof by metes and bounds immediately after the death of the said Krishna Chandra Ghosh. They also contended that there was no existence of the movable properties as mentioned in ‘B’ schedule of the plaint. They also contended that there was no existence of the movable properties as mentioned in ‘B’ schedule of the plaint. As such the relief for partition of the ‘B’ schedule property as prayed for by the plaintiffs/appellants cannot be allowed. They also contended that since the ‘C’ schedule property has already been partitioned by metes and bounds by the decree passed by the Civil Court and the said decree having been affirmed by the First Appellate Court and also by this Hon’ble Court in Second Appeal, the relief prayed for by the plaintiffs/appellants for partition of ‘C’ schedule property is barred by the principle of res judicata. They further contended that while contesting the previous suit for partition in respect of ‘C’ schedule property, the father of the present appellant, namely, Panchanan Ghosh took a positive stand therein by contending that immediately after the death of Krishna Chandra Ghosh, the properties left by Krishna Chandra Ghosh mentioned in schedule ‘A’ of the plaint were partitioned amongst the five sons of the said Krishna Chandra Ghosh and the properties mentioned in schedule ‘C’ of the plaint was given to the widow of Krishna Chandra Ghosh, namely, Biraj Mohini for her maintenance during her lifetime. They thus claimed that when Panchanan Ghosh admitted in his pleadings in the earlier suit that those properties mentioned in schedule ‘A’ of the plaint was partitioned amongst the 5 sons of Krishna Chandra Ghosh, neither the said Panchanan Ghosh nor his heirs can now take a different stand by alleging that those properties still remain unpartitioned and the parties are enjoying those properties pursuant to a mutual arrangement made amongst them for convenient enjoyment thereof. They thus, claimed that such a plea cannot be taken by the plaintiffs/appellants on the principle of estopple. They further claimed that when ‘C’ schedule properties have already been partitioned by the decree of the Court, the plaintiffs’ claim for partition and/or reopening the said partition in respect of ‘C’ schedule property is barred by the principle of res judicata. The defendant Nos. They further claimed that when ‘C’ schedule properties have already been partitioned by the decree of the Court, the plaintiffs’ claim for partition and/or reopening the said partition in respect of ‘C’ schedule property is barred by the principle of res judicata. The defendant Nos. 21-28 claimed that not only the suit properties were partitioned amongst the 5 sons of Krishna Chandra Ghosh but their ownership in respect of their respective allotments were recognised in both the C.S and R.S record of rights and their exclusive possession in respect of their respective allotments were also recorded in column No.23 of C.S record of rights. They claimed that when they purchased various plots of lands from the owners thereof and have been exercising their rights as exclusive owners thereof to the exclusion of all other co-sharers, they have not only acquired absolute title in respect of the suit property by way of such purchase but they have also acquired title therein by adverse possession. They thus, prayed for dismissal of the said suit. Learned Trial Judge after considering the pleadings of the respective parties as well as evidence adduced by them, dismissed the said suit by holding, inter alia, that the plaintiffs’ prayer for partition in respect of ‘A’ schedule property cannot be allowed as their predecessor, namely, Panchanan Ghosh admitted in the earlier suit that the properties mentioned in schedule ‘A’ of the plaint was partitioned amongst 5 sons of Krishna Chandra Ghosh, after his death. The learned Trial Judge further held that when such a plea was taken by Panchanan Ghosh, in the earlier suit, the heirs of Panchanan Ghosh, namely, the plaintiffs/appellants herein are estopped from raising a different plea by contending that those properties were not partitioned by metes and bounds, under Section 115 of the Evidence Act. The learned Trial Judge further held that the properties mentioned in schedule ‘C’ were never partitioned amongst the co-sharers and as such a decree for partition in respect of ‘C’ schedule property was passed by the learned Trial Judge in the earlier suit and the said decree was affirmed upto this Hon’ble Court in Second Appeal. The learned Trial Judge further held that the plaintiffs cannot claim that the earlier partition was not made by metes and bounds as the allotments given to the co-sharers were disproportionate to their interest in the land. The learned Trial Judge further held that the plaintiffs cannot claim that the earlier partition was not made by metes and bounds as the allotments given to the co-sharers were disproportionate to their interest in the land. As such the said partition decree cannot be reopened by the Court as the plaintiffs have failed to prove any of the grounds, namely, (i) fraud, (ii) misrepresentation and (iii) mistakes for which reopening of the partition is permissible under law. The learned Trial Judge, thus, dismissed the said suit. The legality and/or propriety of the said judgment and/or decree passed by the learned Trial Judge in the said suit is under challenge in this appeal before us. Let us now consider the merit of the instant appeal in the facts of the instant case. Re: Plaintiffs’ claim for partition of ‘C’ schedule properties. Let us first of all consider the legality of the plaintiffs’ claim for partition in respect of ‘C’ schedule property. We find from the pleadings of the parties and the evidence on record that the ‘C’ schedule property was the subject matter of partition in the earlier suit filed by the defendant Nos. 1 and 2 against their other co-sharers including Panchanan Ghosh, the predecessor-in-interest of the plaintiffs/appellants. Panchanan Ghosh contested the said suit by filing written statement. The said suit was decreed on contest by declaring the respective shares of the parties in the ‘C’ schedule property and the said partition decree passed by the learned Trial Judge was not only affirmed by the First Appellate Court in appeal but also was affirmed by this Hon’ble Court while dismissing the appeal filed by the predecessor-in-interest of the present plaintiffs/appellants. Having regard to the fact that the decree for partition which was passed by the learned Trial Judge in the earlier suit was affirmed in Second Appeal upto this Hon’ble Court, we hold that the reliefs claimed by the plaintiffs for partition of the ‘C’ schedule property is barred by the principle of res judicata and as such in our view, the decree for partition which was so passed in the earlier suit cannot be reopened now as plaintiffs/appellants have failed to prove any of the grounds recognized by law which vitiated the partition decree passed by the Trial Court which was affirmed in appeal upto this Hon’ble Court. Re: Plaintiffs’ claim for partition in respect of ‘B’ schedule property. Let us now consider the legality and/or validity of the plaintiffs’ claim in respect of ‘B’ schedule property. We find from the materials on record that the plaintiffs/appellants have failed to prove by evidence, the existence of such movable properties which are available for partition amongst the co-sharers. As such the claim for partition of the ‘B’ schedule property as made by the plaintiffs cannot be allowed. Re: Plaintiffs’ claim for a partition in respect of ‘A’ schedule properties. Let us now consider the plaintiffs’ claim for partition in respect of ‘A’ schedule property. In this regard, we like to mention here the stand which was taken by Panchanan Ghosh, the predecessor-in-interest of the present plaintiffs in the earlier suit for partition filed by the defendant Nos. 1 and 2 in respect of ‘C’ schedule property. In the said suit the said Panchanan Ghosh specifically contended that after the death of Krishna Chandra Ghosh all the properties of Krishna Chandra Ghosh were partitioned amongst the heirs of the said Krishna Chandra Ghosh but no property was given to his widow. However, he claimed that some properties were given to her for her maintenance during her life-time. Having regard to the stand taken by the said Panchanan Ghosh in the earlier suit that all the properties of Krishna Chandra Ghosh, namely, the properties as mentioned in schedule ‘A’ of the plaint were partitioned amongst the heirs of Krishna Chandra Ghosh after his death, the heirs and the legal representatives of Panchanan Ghosh are estopped from contending that the properties in schedule ‘A’ of the plaint were not partitioned amongst the heirs of Krishna Chandra Ghosh. Recording of the respective allotments of the co-sharers in the C.S record of rights and their exclusive possession thereof in column No.23 of the C.S record of rights, coupled with the admission made by Panchanan Ghosh about the partition of the ‘A’ schedule property amongst the 5 sons of Krishna Chandra Ghosh undoubtedly proves partition of the ‘A’ schedule property amongst the co-sharers. Even in the plaint of the instant suit, the plaintiffs themselves admitted that ‘A’ schedule property was partitioned amongst the co-sharers after the death of Krishna Chandra Ghosh. They however, contended that such partition was inequitable as allotments were made to the co-sharers disproportionate to their share. Even in the plaint of the instant suit, the plaintiffs themselves admitted that ‘A’ schedule property was partitioned amongst the co-sharers after the death of Krishna Chandra Ghosh. They however, contended that such partition was inequitable as allotments were made to the co-sharers disproportionate to their share. According to them, such partition being an inequitable one and the same having been made by mistake of the parties, the partition is required to be reopened so that an equitable partition of the suit properties can be made amongst the co-sharers by giving allotments to them proportionate to their shares in the suit property. We have examined the pleadings and evidence of the parties in this regard and we find that though the plaintiffs claimed that some of the co-sharers were given more landed properties than the others and this according to the plaintiff was done due to mistake but we do not find any sufficient reason to hold that the said partition was ineffective merely because more land was allotted to some of the co-sharers than the others. It is not the case of the plaintiffs/appellants that there was disparity in the valuation of the allotments made to the respective co-sharers. The valuation of the landed properties depends upon various factors such as its location, its commercial value, nature of the land, description of the land and the land utility factor, etc. Even a small plot of land situated in one place may be much more valuable than a bigger plot of land situated in another place. As such, size of the land cannot always be a determining factor for ascertaining equitable partition amongst the co-sharers. If the valuation of the respective allotments of the co-sharers differ from each other, then of course difference of such valuation is required to be compensated by awarding of owelty money to the co-sharer who receives an allotment which is less valuable than the others. But if the valuation of the respective allotments of the co-sharers is same irrespective of the size of the landed property, then partition cannot be held to be inequitable merely because of variance of the size of the allotments of the respective co-sharers. The plaintiffs have not laid any evidence in the suit for establishing that the allotment which was given to Panchanan Ghosh was less valuable than the allotment which was given to his other co-sharers. The plaintiffs have not laid any evidence in the suit for establishing that the allotment which was given to Panchanan Ghosh was less valuable than the allotment which was given to his other co-sharers. In the absence of such evidence, it will not be wise for this Court to hold that the partition which had taken place amongst the co-sharers of Krishna Chandra Ghosh after his death was ineffective, being not an equitable one. Mr. Pal, Learned Advocate appearing for the appellant, however, tried to impress upon us that the ‘A’ schedule property was not the subject matter of partition in the previous suit. As such he argued that any statement which was made by their predecessor, namely, Panchanan Ghosh in the said suit by way of his defence cannot be construed as his admission for defeating the plaintiffs’ claim in the present suit. He further submits that the evidence must be clear, specific and unambiguous. By referring to the judgment and decree in the previous suit being Ext.5, he pointed out that Panchanan Ghosh never made any clear, specific and unambiguous statement that the properties of Krishna Chandra Ghosh was partitioned by metes and bounds amongst the co-sharers. In support of such contention he relied upon the following decisions of the Hon’ble Supreme Court as well as the High Courts:- 1. In the case Chikkam Koteswara Rao vs. Chikkam Subbarao & Others, 1970 (1) SCC 358 2. In the case of G. Rangaiah vs. Govindappa & Others, AIR 2008 (Kar) 151 3. In the case of Sodhuram vs. Durga Prasad, AIR 2006 (Chhat) 136 We have no quarrel with the principles laid down in these decisions. He also contended that since no issue was framed with regard to the partition of ‘A’ schedule property in the earlier suit and further since no such issue was conclusively decided by the Court while disposing of the earlier suit for partition filed by the defendant Nos. 1 and 2, no finding of the Court in the earlier suit relating to ‘A’ schedule property can operate as res judicata with regard to the plaintiffs’ claim for partition in respect of ‘A’ schedule property in the present suit. In this regard, we have examined the judgment and decree passed by the Court in the previous partition suit filed by the defendant Nos. 1 and 2 against their co-sharers. In this regard, we have examined the judgment and decree passed by the Court in the previous partition suit filed by the defendant Nos. 1 and 2 against their co-sharers. It is true that the properties mentioned in schedule ‘A’ of the plaint of the present suit was not the subject matter of dispute in the previous suit. In the previous suit, properties mentioned in schedule ‘C’ of the plaint was the subject matter of partition. It is also true that while deciding the previous suit no specific issue was framed with regard to the respective claims of the parties regarding partition of ‘A’ schedule property, but we find that Panchanan Ghosh in order to defeat the claim of the plaintiffs therein for partition in respect of ‘C’ schedule property in the earlier suit, specifically took a stand that the properties of Krishna Chandra Ghosh were all partitioned after the death of Krishna Chandra Ghosh amongst his heirs. No explanation is forthcoming from the side of the plaintiffs/appellants as to why their predecessor in interest took such a stand in the earlier suit. In the absence of such an explanation we feel that it will not be wise to allow the plaintiffs/appellants to take a different stand in the present suit with regard to the previous partition of the ‘A’ schedule property amongst its co-sharers on the principle of estoppel under Section 115 of the Evidence Act. That apart, in the amended plaint, the plaintiffs themselves have admitted that the ‘A’ schedule properties were partitioned amongst the co-sharers after the death of Krishna Chandra Ghosh. The plaintiffs, however, challenged the said partition on the ground that the same was not an equitable partition. Thus, we hold that partition of the ‘A’ schedule property was even admitted by the plaintiffs/appellants in the present suit. They however, have challenged the legality of the said partition as according to them partition was not made by metes and bounds and the allotments given to the co-sharers were disproportionate to their shares and this was done by mistake. We have already held above that merely because of the fact that different sizes of land were allotted to different co-sharers, the partition cannot be held to be inequitable. We have already held above that merely because of the fact that different sizes of land were allotted to different co-sharers, the partition cannot be held to be inequitable. We have already held above that the plaintiffs have not proved by any evidence that the valuation of the allotments of the respective shares of the co-sharers under the previous partition varied from each other. As such we cannot hold that the earlier partition was inequitable. Mr. Pal, further argued that at the time when the partition of the ‘A’ schedule property was effected amongst the co-sharers, Bengal Tenancy Act was in force under which the heirs of Krishna Chandra Ghosh inherited the suit property jointly as tenant in common and such tenancy was not partable under the Bengal Tenancy Act as it stood at the time when the partition was alleged to have been effected amongst the co-sharers. He thus, claimed that even if there was any partition of the ‘A’ schedule property amongst the co-sharers immediately after the death of the said Krishna Chandra Ghosh, such partition became ineffective being prohibited by law. We do not find any substance in such contention of Mr. Pal, for the reason that no such plea was raised by the plaintiffs/appellants in their pleading at any stage of the trial of the suit and/or appeal. Though it is true that pure question of law can be raised at any stage of the suit and/or appeal, but no question of law can be raised without basic factual pleadings being made out on which such question of law may rest. These basic factual pleadings are absent in the present case. That apart if partition is reopened on such a plea after such a long time, when the arrangement was so made between the parties and such arrangement was accepted by them continuously for such a long time, then the entire set up will be upset resulting in uncertainty not only amongst the co-sharers but also amongst their purchasers who have settled themselves in the land they purchased from the heirs of the other four sons of Krishna Chandra Ghosh to the exclusion of the all owners of the suit property by relying upon and accepting the said partition amongst the co-sharers as good, valid and legal. Before parting with, we like to mention here that while contesting the earlier suit for partition concerning ‘C’ Schedule property, Panchanan Ghosh neither pleaded for dismissal of the said suit on the ground of partial partition as ‘A’ Schedule property was not included in the hotch pot in the said partition suit, nor pleaded that the co-sharers jointly decided to keep the ‘A’ Schedule property in joint possession of the parties for their convenient enjoyment therein. Either of the aforesaid stands could have been taken by the said Panchanan Ghosh in the said suit, which having not been done, the heirs of Panchanan Ghosh can neither contend that ‘A’ Schedule property still remains unpartitioned nor they can claim that partition decree passed in the earlier suit relating to ‘C’ schedule property requires to be reopened being inequitable one, on the ground of bar of constructive res judicata. Thus, we find no reason to interfere with the impugned order. The instant appeal deserves no merit for consideration. The appeal thus, stands dismissed. The judgment and decree passed by the learned Trial Judge is affirmed. Let the lower court records be sent down to the court below immediately. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. Tapash Mookherjee, J. I agree.