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2015 DIGILAW 715 (CAL)

Md. Anis v. Md. Aslam

2015-08-25

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. This is a defective appeal. However, the defects as notified in the Stamp Reporter's report are curable. 2. Leave is granted to the learned advocate of the appellant to rectify the defects in the memorandum of appeal in terms of the report of the Stamp Reporter. 3. This second miscellaneous appeal is directed against the judgement and/or deemed decree dated 13th May, 2015 passed by the Learned Special Court (E.C. Act))-cum-Additional District & Sessions Judge, Alipore, District South 24-Parganas in Miscellaneous Appeal No. 370 of 2012 reversing the judgement and/or decree dated 30th May, 2012 passed by the Learned Civil Judge (Senior Division), 6th Court, Alipore, District-South 24-Parganas in Miscellaneous Case No.37 of 2003, at the instance of the defendant/opposite party/appellant. 4. After hearing Mr. Bhattacharya, learned advocate appearing for the appellant, we admit this appeal for hearing under the Provision of Order 41, Rule 11 of the Code of Civil Procedure on the following substantial question of law:- Whether an application under Sections 3 and 4 of the Partition Act can be maintained independently without filing any suit for partition or not? 5. The applicant/respondent No.1 is represented by Mr. Mukherjee, learned senior counsel. As such, service of notice of appeal upon the respondent No.1 is dispensed with. 6. The respondent No.2 viz. Nesar Ahmed did not contest either the misc. case filed by Mr. Mukherjee's client before the learned Trial Court or the appeal filed by Mr. Mukherjee's client before the learned First Appellate Court. As such, service of notice of appeal upon the said respondent No.2 is dispensed with. 7. The appeal is thus, treated as ready as regards service. 8. Since the appeal can be decided on a pure question of law, we, on the request of the learned counsel appearing for the parties, have decided to consider the merit of the appeal on the basis of the papers available before us. 9. Let us now consider the merit of the instant appeal in the facts of the instant case. 10. Admittedly, the respondent no.1 and the respondent no.2 jointly owned the property as mentioned in schedule A, of the partition deed dated 25th September, 1981. 9. Let us now consider the merit of the instant appeal in the facts of the instant case. 10. Admittedly, the respondent no.1 and the respondent no.2 jointly owned the property as mentioned in schedule A, of the partition deed dated 25th September, 1981. It is also an admitted fact that by a registered deed of partition dated 25th September, 1981, they partitioned their joint properties and by virtue of such partition, schedule 'B' was exclusively allotted to the respondent no.2 and Schedule 'C' was exclusively allotted to the respondent no.1. However Schedule 'D' remained joint between the parties. Schedule 'D' comprises of the common passage and the common staircase. Schedule 'D' property was not partitioned and the same was kept by the parties for convenient and beneficial use of their respective allotments under the said partition deed by both of them jointly. 11. Subsequently, the schedule 'B' which was allotted to the respondent no.2 was sold and transferred by the said respondent to the present appellant before us on 6th May, 2003. Since the schedule 'B' property was sold to the stranger purchaser, the respondent no.1 herein being the allottee of schedule 'C' filed an application under Section 3 and Section 4 of the Partition Act seeking pre-emption of the sale of 'B' schedule property made by the respondent no.2 herein in favour of the present appellant. 12. The said proceeding was registered as a Miscellaneous case. The learned Trial Judge, after considering the pleadings of the parties and their evidence ultimately dismissed the said miscellaneous case on contest by holding inter alia that no cause of action arose for filing the said miscellaneous case by the respondent no.1 herein as the exclusive allotment of the respondent No.2 herein was sold by him to the present appellant. 13. Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the respondent no.1 herein filed a miscellaneous appeal before the learned First Appellate Court. The said miscellaneous appeal was ultimately allowed by the learned First Appellate Court by holding inter alia that since the 'D' schedule property was not partitioned between the parties, application for pre-emption under Sections 3 and 4 of the Partition Act filed by the respondent no.1 herein is maintainable and the learned First Appellate Court, in fact, allowed the said miscellaneous case in favour of the respondent No.1 herein. 14. 14. The legality and/or propriety of the said judgement and deemed decree passed by the learned First Appellate Court is under challenge before us in this appeal. 15. Heard the learned counsel appearing for the parties. Considered the materials on record including the provisions contained in Sections 3 and 4 of the Partition Act. 16. On reading of the provisions of Sections 3 and 4 of the Partition Act, we have no hesitation to hold that such applications can only be filed in a pending partition suit by any of the parties to the said proceeding. Section 4 of the Partition Act cannot be invoked by any of the co-sharer until partition and/or separate allotment is sought for by the stranger co-sharer and such relief under Section 4 of the Partition Act can only be granted in respect of a dwelling house which is jointly owned by the parties to the partition suit. 17. Let us now consider as to whether these tests are satisfied in the present case or not. 18. We have already mentioned above that Sections 3 and 4 of the Partition Act have no independent application in the absence of any suit for partition. Such applications can only be maintained in a pending partition suit. Here nobody has filed any suit for partition of their joint property. In fact, the joint property was admittedly partitioned between the co-sharers by the partition deed dated 25th September, 1981 in the manner as mentioned above. By virtue of such partition, the respondent Nos. 1 & 2 became the exclusive owner of their respective allotments. There is no other joint property which still remains partible between them. As such none of them including their transferee can even maintain any suit for partition because of the earlier partition of their joint properties. They thus ceased to be co-sharers of the said joint property since the date of such partition. Thus, the application under Section 4 of the Partition Act which was filed by the respondent no.1 herein giving rise to the said miscellaneous case, in our considered view, is not maintainable. 19. They thus ceased to be co-sharers of the said joint property since the date of such partition. Thus, the application under Section 4 of the Partition Act which was filed by the respondent no.1 herein giving rise to the said miscellaneous case, in our considered view, is not maintainable. 19. That apart, since the appellant herein who has purchased the 'B' schedule property from the respondent no.2 herein with the right of common user of the 'D' schedule property, has not applied for partition and/or separate allotment of any joint property, Section 4 of the partition Act has no application in the facts of the instant case. 20. Thus, we conclude that since admittedly the joint property of the respondent nos. 1 and 2 herein was partitioned by metes and bounds between them, keeping 'D' schedule property joint for their common use and for convenient use and enjoyment of their respective allotments, the said 'D' schedule property is impartible and no suit for partition can be maintained for partition of 'D' schedule property. As such, the application filed under Section 4 of the Partition Act by the respondent no.1 is not maintainable. 21. Even the application under Section 3 of the Partition Act is also not maintainable as the invocation of Section 3 of the Partition Act depends upon recording of prior satisfaction of the Court in the partition suit that the joint property is incapable of partition according to the shares of the co-sharer but recording of such satisfaction of the Court in the partition suit is absent herein. In fact no partition suit is pending between the parties where impartibility of the joint parties can be recorded by the Court. In fact presently there is no joint property belonging to the parties which is capable of partition between the parties. 22. Since there is no partition suit between the parties and no satisfaction regarding impartibility of any joint property belonging to the parties according to the shares of the cosharer was recorded by the Courts below, in any partition suit, Section 3 of the Partition Act also cannot be invoked in the present case. 23. As such, we hold that the learned court below erred in allowing the said appeal by the order which is impugned in this appeal. The impugned order is thus set aside. The appeal is thus allowed. 24. 23. As such, we hold that the learned court below erred in allowing the said appeal by the order which is impugned in this appeal. The impugned order is thus set aside. The appeal is thus allowed. 24. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the interlocutory application. The said application being CAN 7035 of 2015 is also deemed to be disposed of. 25. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties immediately. Debi Prosad Dey, J. - I agree.