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2016 DIGILAW 595 (CAL)

Raihan Sk v. Sabur Sk.

2016-08-02

INDRAJIT CHATTERJEE

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JUDGMENT : Indrajit Chatterjee, J. 1. This Court is hearing the Second Appeal as against the judgment and decree passed by the learned Additional District Judge, Kandi, District: Murshidabad, as passed in connection with Title Appeal No. 8 of 2007 on 29-03-2008 wherein the learned First Appellate Court was pleased to confirm the judgement and decree as passed by the learned Civil Judge (Senior Division), Kandi, of the same District as passed in connection with Partition Suit No. 158 of 2001 dated 05-06-2007. 2. The learned courts below was pleased to dismiss the suit on contest as it did not believe the solenama decree passed in connection with Partition Suit No. 64 of 2951 which was marked as Exhibit-4 before the learned Trial Court. The suit was also held to be not maintainable on the ground of partial partition as the entire property of the parties were not brought into hotchpotch of such partition suit. The suit was held to be defective for non-joinder of necessary parties. 3. It was submitted by the bar that Anis Sk. who got the property from Jibas Molla and Ambar Sk. who also purchased the portion of the suit property from that Jibas Molla were necessary parties. It is the admitted position that Anis Sk. and Ambar Sk. purchased the property from Jibas Molla in the year 1938 by a common deed (Exhibit-1). 4. It may be mentioned that R.S. Plot No. 246 measuring 33 decimal and R.S. Plot No. 336 measuring 16 decimal are in dispute. The appellants/plaintiffs claimed that through a decree of partition in connection with Partition Suit No. 64 of 1951 which was decreed in final form as per Solenama (Exhibit-4), Jibas Molla and his mother, Chiyatun Bibi, became the owner of 26 decimal of Plot No. 246 on the southern side and 8 decimal out of 16 decimal of Plot No. 336. The appellants/plaintiffs further claimed in the plaint that Rakhimon Bibi, wife of Jibas Molla, and Rahimon Bibi, i.e. the mother of the defendant as per that decree of compromise got 6 decimal of Plot No. 246 on the eastern side and 8 decimal of Plot No. 336 out of 16 decimal on the same side. After the death of Chiyatun Bibi, her son, Jibas Molla, became the owner of the share of Chiyatun Bibi. After the death of Chiyatun Bibi, her son, Jibas Molla, became the owner of the share of Chiyatun Bibi. It is the claim of the appellants/plaintiffs that Chiyatun Bibi had 1/8th share over Plot No. 246 and the same was her share in respect of Plot No. 336. 5. It was further case of the plaintiffs that Jibas by a Registered Deed No. 111 dated 27-04-1938 sold his entire share to his two brothers, namely, Ambar Sk. and Anis Sk. It is also the claim of the appellants/plaintiffs that Ambar Sk. and Anis Sk. sold half of their shares in those plots to the mother of the plaintiff no.1, Rokia Bibi and to the mother of the plaintiff no.6, Kursia Bibi, as per one deed of sale dated 2nd May, 1953 as per Deed No. 3058 (Exhibit-2). Ambar Sk and Anis Sk, sold their rest portion to Rakhimon Bibi, wife of Jibas. This Rakhimon Bibi got her share as per that Partition Suit of 1951 and when she was the owner and possessor of her share in respect of those plots, she gave her entire share to Abdul Sattar, father of the plaintiff no.6 as per one “Heba-bil iwaz” No.3461. This plaintiff nos.7 to 12 are the legal heirs of Abdul Sattar. 6. Thus, the plaintiffs/appellants claimed before the Trial Court through the plaint that the plaintiffs acquired 42 decimal interest in total in respect of Plot Nos. 246 and 336. The plaintiffs did not divulge in the plaint what was the share of the plaintiffs in respect of those two plots separately. 7. Being denied partition that Title Suit was filed. 8. Out of two defendants, namely, Sabur Sk. and Balirun Bibi, the son and daughter of Rohimun Bibi, only Sabur Sk. contested the suit alleging, inter alia, that the story of compromise in respect of that partition suit is a myth and as such, the claim of title of the plaintiffs by virtue of that compromise decree never cropped up. The defendant no.1 further claimed that the suit was bad for defect of party. The defendant no.1 also raised the plea that entire properties of the parties were not brought into hotchpotch. 9. The defendant no.1 further claimed that the suit was bad for defect of party. The defendant no.1 also raised the plea that entire properties of the parties were not brought into hotchpotch. 9. The Division Bench considering the judgement of the First Appellate Court framed three substantial questions of law, which are as follows: (a) Whether the learned courts below committed substantial error of law in dismissing the suit in its entirety when it is the specific defence of the defendant that the suit was bad for non-joinder of necessary parties; (b) Whether the learned courts below committed substantial error of law in dismissing the suit in its entirety by totally overlooking the fact that the said decision will be binding upon the plaintiff even in a subsequent suit if the same is filed on the basis of share shown in the revisional record of right. (c) Whether the learned courts below committed substantial error of law in not dismissing the suit only on the ground of want of necessary party. 10. It was submitted by Mr. Ghosh, learned Advocate, appearing on behalf of the appellants by taking me to page nos. 20 and 21 of the paper book to show how the learned first appellate court misunderstood the case of the plaintiffs. He admitted that to some extent the finding of the learned first appellate court is correct. He admitted that the property originally belonged to Jibas Molla, his mother, Chiyatun Bibi, Rahimun Bibi wife of Jibas Molla and also the mother of the defendants. He also admitted the document Ext. 1 but the learned Advocate fairly submitted that the finding of the first appellate court that the Ext. 4 was not a valid document is correct in view of the fact that in that partition suit of 1951 Ambar Sk. and Anis Sk. were not made parties and naturally they had no opportunity to sign on the solenama. He further submitted that the finding of the first appellate court that Jibas Molla had no authority to sign on the Solenama or to be a party in that partition suit is correct as Jibas Molla had no interest over the suit property after he sold his share in favour of Ambar Sk. and Anis Sk in the year 1938. He further submitted that the finding of the first appellate court that Jibas Molla had no authority to sign on the Solenama or to be a party in that partition suit is correct as Jibas Molla had no interest over the suit property after he sold his share in favour of Ambar Sk. and Anis Sk in the year 1938. Learned Advocate also submitted that the finding of the first appellate court that some facts were concealed before the court in the year 1951 is also correct. 11. He attacked the judgement of the first appellate court on the ground that Ext. 2 had no connection with Ext. 4 as Ext. 2 was executed on 02/05/1953 by Ambar Sk. and Anis Sk. in favour of Rokeya and Kurshia and Ambar Sk. and Anis Sk. did not acquire title through that Solenama and they derived their title by a sale deed executed in the year 1938 by Jibas Molla. Thus, he submitted that the finding of the first appellate court that the Ext. 2 cannot be taken into consideration is not based on fact or law. He submitted that the Ext. 2 being a valid document, the subsequent transfer made by Rokeya and Kurshia are also valid sale and as such, those persons acquired good title over the suit property through those deeds. Mr. Ghosh further submitted that the first appellate court suddenly jumped to the conclusion that the persons who are claiming title on a false document should be thrown out of litigation at any stage. He banked upon the fact that this is a suit for partition and the status of the parties are same. He further submitted that Rahimun Bibi and Rakhimun Bibi were the plaintiffs in that partition suit and if that Ext. 4 is said to be a tarnished document, then the blame which has been put on the plaintiffs must be shared by the defendants also. 12. He also submitted that in a suit for partition, the court ought to have declared the share of the defendants. He further claimed that this appeal be remanded back to the learned trial court as the necessary parties like Ambar Sk. and Anis Sk. were not made parties and if they are now not alive, then their legal heirs are necessary parties. He further submitted that even if Ext. He further claimed that this appeal be remanded back to the learned trial court as the necessary parties like Ambar Sk. and Anis Sk. were not made parties and if they are now not alive, then their legal heirs are necessary parties. He further submitted that even if Ext. 4 goes, then the plaintiffs acquired title by virtue of different deeds which followed Ext. 2, which is one independent and valid document. He also assailed the judgement of the first appellant court on the ground that the Order 41 Rule 27 petition was rejected by the said court and as such, the plaintiffs were not permitted to bring on record the documentary evidence like the deeds of purchase made in favour of Rakhimun Bibi and Rokia executed by Ambar Sk. and Anis Sk. He further submitted that even the deed executed by Rakhimun Bibi in favour of Abdus Sattar was also not permitted to be brought on record and on those grounds also the suit is fit to be remanded back for fresh adjudication. 13. He further submitted that at best the defendants can claim 2 annas share in respect the plot no.246 and plot no.336 whereas in the R.S.R.O.R. their shares have been shown to be 4 annas. It may be mentioned that Mr. Ghosh did not argue on the point that the entire property was not brought into hotchpotch to get one effective partition. 14. In counter to all these, Mr. Roy, learned advocate, appearing on behalf of the respondent no. 1 submitted that if the Ext. 4 goes what will be fate of the plaintiffs/appellants? He took me to the plaint to convince this court that the entire title of Jibas Molla was derived from Ext. 4. He further submitted that when Jibas Molla sold his entire share in the year 1938 to Ambar Sk. and Anis Sk. then how his name could be included in the said partition suit. Mr. Roy emphasised that if Ext. 4 goes, nothing is left. As regards Ext. 2, he submitted that this document is dated 02/05/1953 whereas the Ext. 4 relates to the year 1951. and Anis Sk. then how his name could be included in the said partition suit. Mr. Roy emphasised that if Ext. 4 goes, nothing is left. As regards Ext. 2, he submitted that this document is dated 02/05/1953 whereas the Ext. 4 relates to the year 1951. He further submitted that there is nothing in the plaint to convince this court that what was the share of Jibas Molla and if the share of Jibas Molla has not been spelt out in the plaint, how can the court pass an effective decree in any suit for partition? He took me to the plaint to show that actually the suit plot belonged to four persons, namely, Jibas Molla, his wife Rakhimun Bibi and Rahimun Bibi and the mother of Jibas Mollla and Chiyatun Bibi. Mr. Roy claimed that in the plaint nothing was divulged what was the share of those four persons and how the shares of Rakhimun Bibi devolved. He further submitted that there is nothing on record to show whether Rakhimun Bibi pre-deceased Jibas Molla to make Jibas Molla the legal heir of Rakhimun Bibi. He further claimed that there is no recital in the plaint how those persons acquired title over the property. 15. In reply it was submitted by Mr. Ghosh that Jibas Molla had share over the property to the extent of 9 annas 10 gondas which he duly transferred to Ambar Sk and Anis Sk. In deciding this appeal this court is to concentrate on the substantial question of law as framed by the Division Bench about which I have written. 16. I have taken into consideration the facts and circumstances of this case, perused the plaint and the written statement considered the argument advanced by the learned Advocates appearing on behalf of the parties and I have through the judgment of both the courts below. 17. All the substantial questions of law are taken up together for the sake of convenience. This court is satisfied considering the pleadings that the plaintiff did not take any step to amend the plaint to implead the necessary parties like Ambar Sk or Anis Sk or their legal heirs if they died in the meantime. This court is satisfied that in the plaint there is no specific claim what was the share of Jibas Molla, Rakimun Bibi, Rohimun Bibi, Chiyatun Bibi. This court is satisfied that in the plaint there is no specific claim what was the share of Jibas Molla, Rakimun Bibi, Rohimun Bibi, Chiyatun Bibi. The entire title of the plaintiffs have been claimed through Exhibit 4 that is the compromise decree passed in connection with partition suit of 1951. On scrutiny of the judgment of the learned trial court and considering the oral and documentary evidence this court is satisfied that Jibas Molla was not a necessary party or proper party in that litigation as per the claim of the plaintiff Jibas Molla sold his interest to Ambar Sk and Anis Sk as back as in the year 1938. The evidence of PW 1 goes to show that he admitted that in the solenama submitted in partition suit No.64 of 1951 the co-shares were not made parties either in the solenama or even in the suit. He further deposed that except Jibas Molla, Rakimun Bibi and Rahimun Bibi no other co-sharer join in that partition suit. The learned courts below rightly decided the matter that Exhibit 4 was created perpetrating fraud on the court and as such both the courts below did not rely on such document. 18. This court is not unmindful of the argument of the respondent that the entire property of the co-sharers were not included in the hotchpotch and as such this suit for partition is also bad on that score. I have gone through the evidence of PW 1 wherefrom it is clear that apart from the suit property Rahimun Bibi and Rakimun Bibi had other properties in joint and this being so this court is satisfied that the partition suit was not maintainable on that ground also. 19. Exhibit 2 is dated 02.05.1953 vide that deed of sale Rokia Bibi and Kuresia Bibi purchased the property from Ambar Sk and Anis Sk but the question is what share of the suit property was acquired by Ambar Sk and Anis Sk as per the deed of 1938, as the plaint is silent as to what was the share of Jibas Molla over the suit property. Naturally this court cannot say how much property Rokia and Kuresia acquired by that deed. Naturally this court cannot say how much property Rokia and Kuresia acquired by that deed. Considering the defects in the plaint as noted while noting the argument this court can say that pleading cannot be supplemented and this matter cannot be cured by remanding the suit back of the learned trial court to give an opportunity to the plaintiff to amend the plaint to incorporate therein the necessary parties and also to divulge in the plaint what was the share of Jibas Molla over the suit property which subsequently devolved upon Ambar SK and Anis Sk as per deed of 1938. 20. I admit the version of Mr. Roy that if Exhibit 4 goes noting is left for the plaintiffs /appellants in this appeal. The circumstances ipso facto shows that Exhibit 4 was secured by perpetrating fraud on the court and as such the parties claiming through that solenama decree cannot get any justice from any court. It is immaterial now whether that may lead the plaintiffs in trouble in subsequent suits. No right can be acquired through a fraudulent decree. 21. Thus, in view of the discussion so long made this court is satisfied that the courts below did not commit any substantial error of law in dismissing the suit in its entirety on the ground of non-joinder of necessary parties considering the peculiar circumstances of this suit. The suit which was framed relying on Exhibit 4 cannot create any right in favour of the plaintiffs-appellants. This being so the appeal is fit to be dismissed and I do that. 22. That the second appeal is dismissed on contest against the respondent no.1 and also dismissed ex-parte against the defendant no.2. There will be no order as to costs. 23. The judgment and decree passed by the learned first appellate court are hereby confirmed. 24. Office is directed to transmit the LCRs to the first appellate court along with the copy of this judgment for doing the rest on its behalf. 25. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.