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2016 DIGILAW 524 (CAL)

Ratna Banerjee v. Debabrata Chatterjee

2016-06-29

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
Jyotirmay Bhattacharya, J. : Re: CAN 4168 of 2015 (Sec. 5) 1. This appeal was filed beyond the prescribed period of limitation. There was 1243 days delay in filing this appeal before this Court. 2. The reason for the delay in filing this appeal has been explained by the appellant in the instant application for condonation of delay. 3. It is stated therein that such delay was caused partly due to communicational gap between the appellant and her advocate in the court below and partly due to her illness. It is also stated therein that she had been continuously suffering from osto-arthritis involving multiple joints along with chronic ostroprotic changes for which she was completely bedridden from September, 2011 till 25th February, 2015. Medical certificate has also been annexed to this application in support of her claim for such illness. 4. It is also alleged by the petitioner that she was not intimated about passing of the preliminary decree in the partition suit by the learned Trial Judge immediately after the preliminary decree was passed by the learned Trial Judge in the suit. However, immediately coming to know about the passing of the preliminary decree in the said partition suit, she applied for certified copy of the impugned judgment and decree on 9th February, 2015. The requisites for obtaining the certified copy of the said decree was deposited by her on the day when it was notified. After the certified copy was made ready for delivery on 12th February, 2015, she received the certified copy of the impugned judgment and decree on 13th February, 2015 and immediately thereafter, the instant appeal was filed on 20th April, 2015. 5. Mr. Chakraborty, learned advocate appears on behalf of the plaintiff/respondent. No affidavit has been filed by his client controverting such statements made by the appellant in her application for condonation of delay. No prayer was made seeking time for filing affidavit in connection with the proceeding for condonation of delay. 6. Thus, by relying upon such uncontroverted statements made by the appellant in this application, we are of the view that the reason for such delay has been sufficiently explained by the appellant in this application. 7. Accordingly, delay in filing the appeal is condoned. 8. The application for condonation of delay thus, stands allowed. 9. Let the appeal now be registered. Re: F.A.T. 186 of 2015 10. 7. Accordingly, delay in filing the appeal is condoned. 8. The application for condonation of delay thus, stands allowed. 9. Let the appeal now be registered. Re: F.A.T. 186 of 2015 10. Immediately after we allowed the application for condonation of delay, we are requested by the learned counsel appearing for the parties for disposing of the instant appeal on merit. 11. We are informed by the learned counsel appearing for the parties that this appeal can be decided on merit even in the absence of the lower court records. The necessary materials such as the pleadings of the parties and the evidence led by the parties in connection with the said first appeal, have also been produced before us by the learned counsel appearing for the parties. 12. Considering such submission of the learned counsel appearing for the parties, we have decided to consider the merit of this appeal on the basis of the papers available before us. 13. Let us now consider the merit of the instant appeal in the facts of the present case. 14. This first appeal arises out of the preliminary decree passed in the partition suit being Title Suit No. 223 of 2008 by the learned Civil Judge (Senior Division), First Court, Hooghly on 26th August, 2011. 15. Admittedly, the suit property originally belonged to Nandarani Debi, the mother of the parties. She died intestate on 18th July, 1988 leaving behind her two sons and two daughters who inherited the suit property in equal share. Each brother and sister inherited 1/4th share from his mother by way of succession. The plaintiff has also purchased the interest of his other two co-sharers. Thus, he claimed that he acquired 8 annas share in the suit property by way of purchase from his other two co-sharers. The plaintiff thus, claimed that he has 3/4th share in the suit property. He however, admitted the share of the defendant/appellant in the suit property. The plaintiff thus, filed the suit for declaration of his 3/4th share in the suit property and for partition thereon according to shares of the parties. Such partition suit was filed as the parties were facing difficulties in possessing the suit property jointly. 16. The defendant/appellant appeared in the said suit and contested the same by filing written statement. The plaintiff thus, filed the suit for declaration of his 3/4th share in the suit property and for partition thereon according to shares of the parties. Such partition suit was filed as the parties were facing difficulties in possessing the suit property jointly. 16. The defendant/appellant appeared in the said suit and contested the same by filing written statement. She admitted in her pleadings that the suit property originally belonged to their mother and on her death, all the four brothers and sisters inherited the suit property by way of succession from their mother equally. She however, stated that she was unaware about the transfer made by the other co-sharers in favour of the plaintiff/respondent. She further claimed that she acquired absolute title in the suit property by adverse possession as she ousted her other co-sharers from coming into joint possession in the suit property. She thus prayed for dismissal of the suit. 17. The parties led evidence in support of their respective claims during the trial of the suit. Several issues were framed in the said suit. However, no specific issue was framed in the said suit with regard to the dispute relating to acquisition of absolute title in the suit property by the defendant/appellant by way of adverse possession, though such a plea of acquisition of absolute title by way of adverse possession was set up by the defendant/appellant in her pleading. 18. The learned Trial Judge after considering the pleadings of the parties and their evidence ultimately passed a preliminary decree by declaring 3/4th share of the plaintiff/respondent and 1/4th share of the defendant/ appellant. Parties were given two months’ time for amicable partition of the suit property by metes and bounds failing which liberty was given to the parties to apply before the Court below for passing of the final decree in the suit. Such amicable partition of the suit property by metes and bounds has not been effected. The defendant/respondent felt aggrieved by the said preliminary decree passed in the partition suit. 19. Hence, she filed the instant appeal by challenging the legality and correctness of the said preliminary decree passed in the said suit. 20. Mr. Bidyut Kiran Mukherjee, learned senior counsel, appearing for the defendant/appellant contended that the entire trial of the suit was vitiated due to non-framing of a material issue in the suit. 19. Hence, she filed the instant appeal by challenging the legality and correctness of the said preliminary decree passed in the said suit. 20. Mr. Bidyut Kiran Mukherjee, learned senior counsel, appearing for the defendant/appellant contended that the entire trial of the suit was vitiated due to non-framing of a material issue in the suit. He has drawn out attention to the pleadings made out by his client in the written statement. It is pointed out by him that the plea of acquisition of absolute title in the suit property by way of adverse possession by ousting the other co-sharers from coming into joint possession has been pleaded in the written statement specifically. He, thus, contended that since such a plea was set up by the defendant in her defence, the learned Trial Judge ought to have framed an issue regarding acquisition of the plaintiff’s absolute title in the suit property by way of adverse possession. This was not done by the learned Trial Judge. 21. According to Mr. Mujkherjee, since such an issue was a material and vital issue in the said suit and further since such an issue was not framed in the suit, his client could not lead a complete evidence on the said issue in course of trial of the suit before the learned Trial Judge. 22. It is settled law that mere non-framing of an issue cannot vitiate the trial of the suit. Of course, if any, material issue is not framed and as a result of non-framing of a material issue, if the parties cannot lead proper evidence in support of their respective claim on the said issue, then of-course trial vitiates. 23. But, here is the case where we find that though such material issue was not framed but the parties led evidence in support of their respective claims. We have considered the entire evidence led by the parties in support of their respective claims made out in their respective pleading in the suit. We find that the defendant/respondent stated in her cross-examination that she was paying rates and taxes of the suit premises to the municipal authority and the tax-receipts were granted in the name of her mother. Thus, we find that though her mother died some time in 1988, still then, she did not take any step for mutating her name in the municipal record as absolute owner thereof. Thus, we find that though her mother died some time in 1988, still then, she did not take any step for mutating her name in the municipal record as absolute owner thereof. That apart, she has also stated in the evidence that she is not claiming and has not claimed 16 annas interest in the suit property. She has also stated in her evidence that the suit property has not been partitioned. She has also stated in her evidence that she has no objection in case the suit property is partitioned by giving her 1/4th share. 24. Considering this part of the evidence of the defendant/appellant, we have no hesitation to hold that though she set up her claim for acquisition of title in the suit property by way of adverse possession, but she consciously abandoned her said claim, while giving evidence in the said suit. 25. On the contrary, we find that the acquisition of 1/4th share by way of inheritance by the plaintiff from his mother is undisputed. The plaintiff has proved that in addition to the share which he inherited from his mother, he has also purchased 8 annas share from the other two co-sharers. 26. Thus, we have no hesitation to hold that the plaintiff has acquired 3/4th share in the suit property. 27. In such view of the fact, we find no reason to disturb the preliminary decree passed by the learned Trial Judge in the partition suit. The preliminary decree passed in the partition suit is thus, affirmed by this Court with this rider that in the event any of the parties intends to sell his/her interest in the suit property to any stranger then, the interested party may avail of the remedy available to him/her under Section 4 of the Partition Act, provided any such occasion arises fulfilling the conditions of Section 4 of the said Act. 28. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the injunction application. 29. The application for injunction being CAN 4169 of 2015 is thus, deemed to be disposed of. 30. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.