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2015 DIGILAW 694 (CAL)

Chinmoy Ranjan Das v. Swapna Das

2015-08-19

RAJIV SHARMA, SHIVAKANT PRASAD

body2015
JUDGMENT : Shivakant Prasad. J. The instant appeal is directed against the judgment and decree dated 27th October, 2006 passed in Title Suit No. 194 of 2000 by the Civil Judge (Senior Division), Baruipur, South 24-Parganas. The Chronology of the case leading to the instant appeal is that the suit property comprising 10 Cottahs10 Chittacks and 11 sq. ft. of land with a pucca two-storied building standing thereon, was purchased by Nalini Ranjan Das, Dr. Chinmoy Das, Pijush Ranjan Das, Nirmalya Renu Das, and Gita Das (nee Saha). Nalini Ranjan Das, died intested as a bachelor on 10.10.1983. Thus, the aforesaid two brothers and two sisters inherited 1/4th share each. By a Registered Deed of Gift dated 21.09.2000 Kumari Nirmalya Renu Das gifted undivided 1/4th share in the suit property to the Plaintiff No. 2 and thereby Plaintiff No. 2 acquired ½ share therein. The parties are in joint possession and enjoyment of the suit property. Since sometimes past the plaintiffs have been facing various troubles in peaceful occupation and enjoyment of the suit property jointly with the defendants, the plaintiffs requested the defendants to effect amicable partition of the suit property by metes and bounds but the defendants paid no heed to the said request. Hence, the suit for partition and for separate possession was filed. The suit was contested by the defendant/respondent by filing Written Statement denying all material particulars made in the Plaint and contended inter alia that Nirmalya Ranu Das gifted her undivided 1/4th share in the suit property to the Plaintiff No. 2, Gita Das and that the suit property has already been partitioned in the middle of November, 1982 on the basis of an amicable partition. The defendant/ respondent is in possession of the demarcated portion by raising two-storied building thereon. As such, it is contended that parties are not in joint possession and enjoyment of the suit property. Accordingly, the defendant prayed for dismissal of the suit before the Trial Court. On the above pleadings, the learned Trial Judge framed as many as nine issues including issue as to whether the suit property was previously partitioned by metes and bounds amongst the co-sharers. Accordingly, the defendant prayed for dismissal of the suit before the Trial Court. On the above pleadings, the learned Trial Judge framed as many as nine issues including issue as to whether the suit property was previously partitioned by metes and bounds amongst the co-sharers. After taking evidence of the parties to the suit during trial and on hearing the learned Advocates for the parties, the learned Trial Judge decreed the suit in preliminary form on contest with cost granting decree of partition and separate possession and further declaring that the Plaintiff No. 1 and Defendant each has got 1/4th share and the Plaintiff No. 2 has got ½ share in the suit property. The parties were further directed to get the amicable partition by giving owelty money to the defendant within three months from the date of the order, failing which either of the parties were given liberty to apply for final decree by appointment of survey knowing pleader commissioner to effect the partition by metes and bounds in terms of the preliminary decree. Being aggrieved by and dissatisfied with the impugned judgment and decree the Appellant preferred the instant appeal on the grounds, inter alia, that the learned Trial Judge acted illegally in finding that the Appellant No. 2 had not contributed at the time of purchase of the suit property inasmuch as it has been established in the cross examination of the Appellants that she had contributed money to purchase the suit property by getting gold loan. The ground further taken is that the defendant/respondent had paid 10/11th share of consideration money in as much as the evidence on record on behalf of the plaintiff clearly established that the suit property was purchased by the eldest brother of the parties and in the name of all brothers and sisters. It has been further contended that the learned Judge failed to consider that no corroborative evidence was adduced by the defendant/ respondent as to his contribution of Rs. It has been further contended that the learned Judge failed to consider that no corroborative evidence was adduced by the defendant/ respondent as to his contribution of Rs. 10,000/- at the time of purchase of the suit property and as such finding of the learned Judge as to his contribution of 10/11th share towards consideration for purchase is absolutely unwarranted and that the learned Trial Judge ought to have appreciated that by dint of the deed of gift executed by Nirmalya Renu Das who gifted her 1/5th share in the suit property to the Plaintiff No. 2 and as such, the defendant/respondent is not entitled to any owelty money. It is also pointed out that the finding of the learned Judge in favour of the respondent regarding the payment of consideration money and for construction of the building is based on inadmissible evidence and thereby the learned Judge has failed to consider the evidence of the plaintiffs/appellants and the documents filed on their behalf showing that the suit property was purchased in the name of three brothers and two sisters and the contribution was made out of the joint fund of the family and as such, the defendant/ respondent is also liable for the owelty money to be paid to the plaintiff/appellant. Accordingly, the plaintiffs/appellants have assailed the judgment impugned. On the careful perusal of the judgment impugned we find that admittedly the suit property was purchased as per the Deed No. 2797 in the year 1997 by three brothers and two sisters and after purchase, Nalini Ranjan Das died on 10.10.1983. Therefore, the 1/5th Share of Nalini Ranjan Das, since deceased devolved upon the appellants and the defendant/respondent and another sister Nirmalya Ranu Das and as such, they acquired 1/4th share each in the suit property. It has been specifically found by the learned Trial Judge that the vendor received the consideration money from the purchasers jointly. It has also been observed by the learned Trial Judge that Nirmalya Ranu Das gifted her share in the suit property to the Plaintiff No. 2 Gita Das by virtue of a deed of Gift being No. 2900 (Exhibit-1) and there is no whisper in the recital of the Deed (Exhibit1) to show that even in the year 2000 the Suit property was not amicably partitioned and it remained joint. Therefore, the contention that suit property was amicably partitioned cannot be accepted. Therefore, the contention that suit property was amicably partitioned cannot be accepted. It is settled principle of law that the partition of the property can be effected by a decree of partition by metes and bounds by the competent Civil Court or by a Registered Deed of Partition. Now, during the course of argument judgment dated April 19, 2013 passed in F.A. 163 of 2007 has been pressed in service annexed with supplementary affidavit submitted on 25th June, 2013 on behalf of the respondent wherefrom we find that the disputes between the parties has already been amicably settled and that the Division Bench of this Court was pleased to disposed of the appeal without costs and with a direction to the commissioner of partition to complete the measurement and the partition process in the terms of the said order. Under those circumstances there remains nothing in this matter for decision further. Let the LCR together with a copy of this judgment be sent to the learned Trial Court. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree.