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2017 DIGILAW 8 (CAL)

Krishna Chouhan v. Kamli Chouhan

2017-01-04

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2017
Jyotirmay Bhattacharya, J. : Re: CAN 1559 of 2012 (Condonation of delay) 1. The instant appeal being FAT 35 of 2012 is directed against a preliminary decree passed in the partition suit by the learned Trial Court. Since the instant appeal was not filed within the period of limitation, an application has been taken out by the appellant for condonation of delay. There was 234 days delay in filing this appeal before this Court. Reasons for the delay have been sufficiently explained by the appellant in this application. Such delay was caused due to the illness of the appellant. Medical certificate has also been annexed to the application for condonation of delay to substantiate the appellant’s claim of his illness during the relevant period. 2. No affidavit has been used by the respondents controverting such statements made by the appellant in his application for condonation of delay. 3. In view of such uncontroverted statements made by the appellant in the application for condonation of delay, we hold that the reasons which prevented the appellant from filing this appeal within the prescribed period of limitation have been sufficiently explained by the appellant in this application. Accordingly, delay in filing this appeal is condoned. Let the appeal now be registered. 4. The application for condonation of delay being CAN 1559 of 2012 is, thus, disposed of. Re: FAT 35 of 2012 Immediately after the delay in filing this appeal is condoned, we are requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit. According to the learned counsel appearing for the parties, the merit of the instant appeal can be decided only on point of law without deciding any factual dispute between the parties. Since the lower court records have already been brought, we, on the prayer of the learned counsel appearing for the parties, have decided to hear out the appeal itself on merit on the basis of the papers available before us by dispensing with the requirement of filing paper books in this appeal. 5. Let us now consider the merit of the instant appeal in the facts of the present case. 6. 5. Let us now consider the merit of the instant appeal in the facts of the present case. 6. Admittedly the “Ka” schedule property comprising of 1.72 acres of land lying in R.S. Plot No. 1196 of 185 No. Gangsara Mouza within P.S. Dhantala was purchased by Ramrup Chouhan in the name of his two sons viz., Krishna Chouhan and Maniklal Chouhan by two registered sale deeds, in the year 1981. Thus, those two brothers became the owners of “Ka” schedule property in equal share. Since one of the brothers viz., Maniklal Chouhan was facing difficulties in possessing the suit property jointly with his brother Krishna, he filed the suit for declaration of his 50% share in the suit property and for partition. 7. In the said suit, he also challenged the legality and validity of the deed of gift allegedly executed by Maniklal Chouhan for bequeathing his 50% share in favour of his brother viz. Krishna Chouhan. He thus, prayed for a declaration regarding nullity of the said deed of gift which was mentioned in schedule ‘Kha’ of the plaint. 8. The defendant viz. Krishna Chouhan appeared in the said suit and contested the same by filing written statement claiming 16 annas share in the suit property. He claimed that he became the owner of the suit property by way of purchase of the suit land. He further claimed that by virtue of the deed of gift executed by his brother Maniklal Chouhan bequeathing his 8 annas share in favour of Krishna Chouhan, the defendant viz. Krishna Chouhan became the owner of remaining 50 % share in the suit property. Thus, he claimed absolute title in the suit property and he prayed for dismissal of the suit. 9. The parties led evidence in support of their respective claims. Since the signature of Maniklal Chouhan appearing in the deed of gift mentioned in schedule ‘Kha’ of the plaint was denied by the plaintiff viz. Maniklal Chouhan, the disputed signature of the donor appearing in the said deed of gift was sent to the Hand Writing Expert who after comparing the disputed signature of the donor appearing in the said deed of gift with the admitted signature of Maniklal Chouhan, submitted his report mentioning therein that the signature of the donor which was appearing on the disputed deed of gift, was not the signature of Maniklal Chouhan. 10. 10. That apart, the defendant also did not take any step to prove the said deed of gift by examining the attesting witnesses in the light of the provision contained in Section 68 of the Evidence Act. 11. Under such circumstances, the learned Trial Judge held that the defendant has not acquired any title in respect of the suit property by virtue of the deed of gift allegedly executed by Maniklal Chouhan in his favour. Thus, the learned Trial Judge passed a preliminary decree in the said suit declaring 50% share in favour of the plaintiff and 50% share in favour of the defendant. 12. The legality of the said preliminary decree is under challenge in this appeal. 13. Apparently, we do not find any error in the impugned judgment but before affirming the judgment passed by the learned Trial Court. While passing the preliminary decree, we like to mention here some additional facts which will ultimately determine the fate of the instant appeal. 14. Before the hearing was concluded in the suit, Maniklal Chouhan viz. the plaintiff died. On his death, his legal representatives excepting one son viz. Bhim Chouhan @ Vim Nunia were substituted in place of the said Maniklal Chouhan, since deceased. Since Bhim Chouhan @ Vim Nunia was not substituted in the said suit, he has filed an application praying for his addition as respondent in this appeal. 15. Bhim Chouhan @ Vim Nunia being one of the successor of Maniklal Chouhan is not the disputed by any of the parties. 16. As such, we are of the view that on the death of Maniklal Chouhan, Bhim Chouhan @ Vim Nunia along with the other legal representatives of Maniklal Chouhan inherited the 8 annas share left by Maniklal Chouhan in the suit property, in equal share. Thus, Bhim Chouhan @ Vim Nunia is admittedly a co-sharer in the suit property. Such a co-sharer was left out in the suit, the suit for partition is not maintainable in the absence of a co-sharer. 17. Since the left out co-sharer has now applied for his addition as a respondent in the appeal and further since the other parties to the suit/appeal are not denying Bhim Chouhan @ Vim Nunia as one of the heirs Maniklal Chouhan, we allow the applicant’s prayer for his addition as respondent no.1(f) in this appeal. 18. 17. Since the left out co-sharer has now applied for his addition as a respondent in the appeal and further since the other parties to the suit/appeal are not denying Bhim Chouhan @ Vim Nunia as one of the heirs Maniklal Chouhan, we allow the applicant’s prayer for his addition as respondent no.1(f) in this appeal. 18. His prayer for addition of party in application being CAN 4900 of 2015 is thus allowed. 19. The concerned department is directed to add the applicant viz. Bhim Chouhan @ Vim Nunia as added respondent no.1(f) in this appeal. 20. Having regard to the fact that even by addition of Bhim Chouhan @ Vim Nunia as respondent in this appeal, the shares of the defendant/appellant viz. Krishna Chouhan will not be altered, we, instead of sending the suit back to the learned Trial Court on remand for fresh trial, propose to dispose of the appeal itself by modifying the preliminary decree to the extent by declaring that all the legal representatives of Maniklal Chouhan being the respondent nos. 1(a) to 1(e) including the added respondent viz. Bhim Chouhan @ Vim Nunia jointly inherited the 8 annas share left by their predecessor viz. Maniklal Chouhan in the ‘Ka’ schedule property. 21. As such, we declare 8 annas share in favour of all the legal representatives of the original plaintiff viz. the respondent nos. 1(a) to 1(e) and the added respondent being identified as respondent no. 1(f) jointly. 22. We also uphold the preliminary decree of the learned Trial Court to the extent of the share of the defendant viz. Krishna Chouhan as declared therein. The preliminary decree is modified accordingly. 23. The appeal is thus, disposed of. 24. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.