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2017 DIGILAW 327 (CAL)

MD. NAZRUL ISLAM v. UDAY CHAKRABORTY

2017-03-24

ASHA ARORA, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. This first appeal is directed against an order of rejection of plaint filed in the partition suit vide Order No. 32 dated 11th May, 2016 passed by the learned Civil Judge (Senior Division), 1st Court, Barasat, North 24-Parganas in Title Suit No. 313 of 2012 at the instance of the plaintiffs/appellants. 2. An interim order of injunction was passed by this Court on 3rd October, 2016 by restraining the respondents from raising any construction and/or further construction over the suit property and/or from changing the nature and character thereof till the end of November 2016 or until further order whichever was earlier. The said interim order of injunction was extended from time to time and the said interim order of injunction is still in operation. 3. Today, at the time when the appellants' prayer for further extension of the interim order of injunction was under consideration, we are requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit on the basis of the material available before us. 4. The plaint filed in the partition suit was rejected by the learned Trial Judge on an application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant No.1/respondent No.1 alone. The said defendant No.1 is now before us. Since the other defendants did not pray for rejection of the plaint, their presence, in our view, is not necessary for disposal of this appeal. As such, service of notice of appeal upon those respondents is dispensed with. 5. For considering the justifiability of the impugned order, we only require to consider the plaint and the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant No.1/respondent No.1. Those two documents are now before us. As such, we have decided to dispose of the appeal itself on merit by dispensing with the requirement of filing paper book in this appeal. 6. Let us now consider the merit of the instant appeal in the facts of the present case. 7. The plaintiffs filed a suit for partition against their co-sharers in respect of various plots of land including one plot being C.S. Plot No.539 comprising of .23 decimals of land. Abdul Hadi Mondol was recorded as raiyat in respect of the said plot of land. 7. The plaintiffs filed a suit for partition against their co-sharers in respect of various plots of land including one plot being C.S. Plot No.539 comprising of .23 decimals of land. Abdul Hadi Mondol was recorded as raiyat in respect of the said plot of land. Amongst various other plots, another plot being bata dag No. 574/1794 comprising of an area of .23 decimals of land was recorded in the name of Ummar Ali Mondol. The plaintiffs alleged that the suit property comprising of various plots of land was originally owned by three co-sharers viz., Abdul Hadi Mondol, Taleb Ali Mondol and Ummar Ali Mondol having 1/3rd share each in the suit property. It is further alleged in the plaint that there was amicable partition between the co-sharers and on the basis of such amicable partition, C.S. dag No. 539 comprising of .23 decimals of land was allotted in favour of Abdul Hadi Mondol. It was further alleged that by virtue of such amicable partition, bata dag No. 574/1794 comprising of .23 decimals of land was allotted in favour of Ummar Ali Mondol. It was further alleged therein that the other dags have also been recorded in the names of other co-sharers by virtue of such amicable partition. It is also alleged therein that subsequently one of the co-sharers viz., Taleb Ali Mondal executed a deed of Hebanama in favour of the plaintiffs being registered deed No.1015 in the year 1968 for bequeathing his allotment in favour of his sons viz. the plaintiffs herein. 8. The suit property comprises several plots of lands of various descriptions. There are residential house, vacant land, danga lands etc. However, since the defendants are denying amicable settlement and/or challenging the correctness of the recording of names of the raiyats in the R.S. record of rights, the plaintiffs have filed the instant suit for partition and injunction. The right of the defendant no.1 to purchase the dag No. 1793 or to make construction over there is also challenged therein. It was also alleged in the said suit that the defendant no.1 should have purchased dag No. 574/1794. Thus, in effect, the plaintiffs have challenged the legality of the defendant's purchase of the demarcated portion of dag No. 1793. 9. It was also alleged in the said suit that the defendant no.1 should have purchased dag No. 574/1794. Thus, in effect, the plaintiffs have challenged the legality of the defendant's purchase of the demarcated portion of dag No. 1793. 9. The defendant No.1/respondent No.1 appeared in the said suit and filed an application under Order 7 Rule 11 of the Code of Civil Procedure praying for rejection of the plaint on various grounds which are as follows :- "(a) All the co-sharers have not been made party in this suit; (b) The suit is barred as per provision of section 61 of West Bengal Land Reforms Act; (c) The suit is barred on the point of limitation; and (d) There has been admission by the plaintiffs in the plaint that previously an oral partition took place in respect of the suit property." 10. These are the grounds on which rejection of plaint was sought for by the defendant No.1/respondent No.1. Learned Trial Judge while considering the said application for rejection of the plaint filed by the defendant No.1 held that suit for partition cannot be dismissed for non-joinder of all the co-sharers in the partition suit at the initial stage of the suit as defect of party due to non-joinder of some of the co-sharers, can very well be cured by the plaintiffs by adding them as parties in the suit during the pendency of the suit. We fully agree with the conclusion which was so drawn by the learned Trial Judge in this regard. 11. Learned Trial Judge also held that the suit is not barred under the provision of section 61 of the West Bengal Land Reforms Act as the plaintiffs have not prayed for correction of the record of rights in the present suit. Such conclusion was drawn by the learned Trial Judge by relying upon a decision of this Court in the case of Sachin Ghosh vs. Niranjan Chandra Ghosh reported in (2004) 1 WBLR (Cal.) 236. 12. It is well settled that the Civil Court has no jurisdiction to correct the record of rights. The Civil Court cannot even entertain any suit where correction of record of rights is prayed for by the plaintiffs. 12. It is well settled that the Civil Court has no jurisdiction to correct the record of rights. The Civil Court cannot even entertain any suit where correction of record of rights is prayed for by the plaintiffs. However, such bar imposed on the jurisdiction of the Civil Court in entertaining suit for correction of record of rights under section 61 of the West Bengal Land Reforms Act, does not debar the Civil Court from entertaining either a suit for declaration of title or for partition and in such suit, incidentally the Court has the jurisdiction to consider the legality and/or correctness of recording in the record of rights. As such, we fully agree with the conclusion drawn by the learned Trial Judge that the suit for partition, as it is framed, is not barred under the provision of section 61 of the West Bengal Land Reforms Act. 13. Learned Trial Judge also rejected the contention of the defendant No.1 regarding the maintainability of the suit due to bar of limitation by holding that since limitation is a mixed question of law and fact, such objection regarding maintainability of the suit due to bar of limitation cannot be decided without trial on evidence. We fully agree with such conclusion drawn by the learned Trial Judge. 14. As a matter of fact, the plaint was rejected by the learned Trial Judge on the basis of the other objection raised by the defendant No.1 i.e. maintainability of the suit for partition where previous partition of the suit property, amicably amongst the co-sharer was admitted in the plaint itself. 15. Let us now consider the legality and/or correctness of the findings arrived at by the learned Trial Judge in this regard. 16. On perusal of the plaint, we find that the plaintiffs themselves have stated that the suit properties were amicably partitioned amongst the co-sharers. It was also stated by the plaintiffs that on the basis of such amicable partition, one of the co-sharers executed a deed of Hebanama in favour of the plaintiffs in the year 1968. Section 14 of the West Bengal Land Reforms Act was amended in the year 2002. By virtue of such amendment, partition can only be effected either by a registered deed of partition or by decree of the Civil Court. Section 14 of the West Bengal Land Reforms Act was amended in the year 2002. By virtue of such amendment, partition can only be effected either by a registered deed of partition or by decree of the Civil Court. No other mechanism for partition is recognised under section 14 of the West Bengal Land Reforms Act. Section 14 of the West Bengal Land Reforms Act was amended in the year 2002 giving retrospective effect from 7th August, 1969. 17. Having regard to the fact that the deed of Hebanama was registered in the year 1968 and the factum of oral partition was mentioned in the said deed of Hebanama, oral partition, if there be any, must have been effected prior to the execution of the deed of Hebanama. As such, section 14 of the West Bengal Land Reforms Act as amended in the year 2002 cannot nullify the effect of oral partition, if it is found that joint property belonging to the co-sharers were, in fact, partitioned amicably prior to 7th August, 1969. 18. Since the plaintiffs admitted such oral partition of the suit property and such oral partition was effected prior to 7th August, 1969, the learned Trial Judge held that the instant suit for partition is not maintainable as there was prior partition between the co-sharers in respect of the suit property. Thus, the learned Trial Judge rejected the plaint on this ground alone. 19. In our considered view, this part of the finding of the learned Trial Judge cannot be supported for the simple reason that the learned Trial Judge while passing the impugned order, missed the basic statement in the plaint which is the foundation of the instant partition suit. In paragraph 10 of the plaint, the plaintiffs have categorically stated that the defendants are now denying oral partition and they are also challenging the legality of the recording of names of the raiyats in the revisional record of rights which were made on the basis of such oral partition. As a matter of fact, such denial of oral partition made by the defendants prompted the plaintiffs to file the instant partition suit. As a matter of fact, such denial of oral partition made by the defendants prompted the plaintiffs to file the instant partition suit. In such a suit, subject to the objection which may be raised by the defendants in their written statement, the Court will have to consider first of all as to whether there was oral partition between the parties and if it is found that the oral partition was not effected legally, then the Court will have no other alternative, but to pass a preliminary decree followed by final decree in the said suit. On the contrary, if it is found during trial of the suit that the suit property was partitioned orally amongst the co-sharers before 7th August, 1969, then the Court will have to dismiss the suit. 20. Thus, on reading the pleadings made out in the plaint, we have no hesitation to hold that the plaint filed in the partition suit cannot be rejected in view of the denial of the plaintiffs' statement made in the plaint that the oral partition was denied by the defendants and that prompted the plaintiffs to file the instant partition suit. Accordingly, we set aside the impugned order and direct the learned Trial Judge to dispose of the suit in accordance with law on its own merit. 21. The appeal and the application filed in connection therewith are, thus, disposed of.