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2017 DIGILAW 980 (CAL)

Rajul Mukim v. Sumermal Surana

2017-12-14

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

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JUDGMENT : 1. The appeal arises out of the order of dismissal suffered by the appellant on an application to intervene in execution proceedings pertaining to a partition decree. 2. There were five parties to the partition suit: husband and wife Surana, husband and wife Bhandari and a company by the name of Khazana Gold and Diamonds Pvt. Ltd. There were previous disputes between the Suranas and the Bhandaris pertaining to the control of company Khazana. The partition suit has come to an end upon the only immovable property at Darga Road being divided by metes and bounds between the parties. Khazana was found to be entitled to one-fifth share in the Darga Road property and has been allotted approximately 5047 sq. ft. at the third floor of the building at the Darga Road property. 3. The appellant is a daughter of the Bhandaris. The appellant claims to have purchased a part of the Khazana’s undivided interest in the Darga Road property at a time when the suit had been instituted but prior to any preliminary decree being passed therein. The suit was instituted in 2004. The appellant purchased a part of Khazana’s undivided share in the property on February 28, 2011. A preliminary decree was passed in the suit on November 26, 2014 before it has been finally decreed on July 14, 2016. 4. In addition to the appellant’s rights as one of the co-sharers of the property, the appellant also asserts her rights as a lessee under Khazana in respect of the property. The deed of lease of April 1, 2006 does not indicate the exact area in the building that was the subject-matter of the lease though it clearly speaks of Khazana having one-fifth undivided share in the property. 5. It is clear that the appellant was aware of the pendency of the partition suit at the time that the appellant purchased a share of Khazana’s interest therein. However, the appellant took no steps to apply to be impleaded in the suit. Since the appellant has purchased a share of a co-sharer in a partition suit during the pendency of such suit, the doctrine of lis pendens would apply. However, the appellant took no steps to apply to be impleaded in the suit. Since the appellant has purchased a share of a co-sharer in a partition suit during the pendency of such suit, the doctrine of lis pendens would apply. As a consequence, unless the appellant applied on her own to be impleaded as a party to the partition suit, the appellant would have to look at Khazana’s share in the property and seek a partition with the Khazana upon Khazana being allotted a demarcated area in the Darga Road property. 6. The appellant has referred to a judgment reported at (2016) 2 ICC 1. It is plain from paragraph 6 of such reported decision that a part of a co-sharer’s interest in the joint land was sold prior to the filing of the partition suit. It was in such context that the Division Bench of this Court observed that upon the purchaser buying a share in the property from a co-sharer, such purchaser also became a co-sharer of the property and “in the absence of those co-sharers, the suit of partition cannot be held to be maintainable.” It is emphasized that such observation was in the context of a pre-suit co-sharer not being impleaded as a party to the partition suit. 7. In the present case, apart from the fact that the appellant herein is a daughter of the Bhandaris and is, apparently, the Bhandaris’ mouthpiece or instrumentality to upset the partition decree or to put a spanner in the works, it is for the appellant to seek the appellant’s share of the property whether purchased from or let out by Khazana, if Khazana has not sold any part of its share. It will be open to the appellant herein to take appropriate steps against Khazana now that Khazana has a clearly demarcated 5047 sq. ft. allotted to it at the third floor of the premises in question. 8. It is of some significance that the order impugned dated September 11, 2017 records that the partition commissioner who had been appointed receiver in the execution proceedings had not found the appellant herein to be in possession of any part of the suit premises during his visits. 9. Whatever rights the appellant may have, the appellant may assert against Khazana, including partition of the allotment made in the subject suit in favour of Khazana. 9. Whatever rights the appellant may have, the appellant may assert against Khazana, including partition of the allotment made in the subject suit in favour of Khazana. The order impugned cannot be faulted for not letting the appellant to interfere in execution proceedings with which she has no nexus. 10. APO No. 537 of 2017 and GA No. 3855 of 2017 are dismissed. There will be no order as to costs.