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2018 DIGILAW 871 (CAL)

Purabi Chakraborty v. Rama Chakraborty

2018-11-30

SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. C.O. No. 3718 of 2018 and C.O. No. 3731 of 2018 have been preferred respectively by the defendant nos. 1 and 2 and the defendant nos. 3 to 6 in a suit for partition, against an order allowing an amendment of the plaint. 2. Initially, the suit was amended once, and such amended plaint contained the following reliefs: “(a) Decree of declaration to the effect that the Plaintiff was entitled to 50% undivided share and the Defendant Nos. 1 and 2 were jointly entitled to remaining 50% undivided share of the suit property described in the Schedule of the Plaint. (b) for preliminary Decree declaring the share of the Plaintiff and the Defendant Nos. 1 and 2 in respect of the property described in the Schedule of the Plaint. (c) for Decree of declaration to the effect that the Defendant Nos. 1 and 2 being undivided owners in respect of 50% share of the suit property fully occupied by the co-sharers, were not entitled to dispose of their said undivided share in respect of the suit premises to the outsiders and/or to the added Defendant Nos. 3 to 6. (d) for decree of declaration to the effect that the DEED OF CONVEYNCE dated 11.07.2011 registered in Book No. 1, CD Volume No. 33, in Pages 2027 to 2050, being No. 08839 for the year 2011 by the Defendant Nos. 1 and 2 in favour of the added Defendant Nos. 3 to 6 is a nullity and void ab-initio and is liable to be cancelled and the Defendant Nos. 3 to 6 be directed to deliver up the said Deed before this Learned Court for recording cancellation of the same. (e) for Decree of declaration to the effect that the added Defendant Nos. 3 to 6 do not have any manner of right to get Decree of partition in respect of the Suit Premises or exercise any manner of claim or right in respect of the suit premises. (f) for Decree directing the added Defendant Nos. 3 and 6 to execute appropriate DEED OF APPROPRIATE RE-CONVEYANCE in respect of undivided 50% share of the suit premises unto and in favour of the Defendant Nos. 1 and 2 and/or in the alternative pass Decree directing the Defendant Nos. (f) for Decree directing the added Defendant Nos. 3 and 6 to execute appropriate DEED OF APPROPRIATE RE-CONVEYANCE in respect of undivided 50% share of the suit premises unto and in favour of the Defendant Nos. 1 and 2 and/or in the alternative pass Decree directing the Defendant Nos. 1 and 2 to execute appropriate DEED OF CONVEYANCE in favour of the Plaintiff of this suit in respect of 50% undivided share of the suit property upon receipt of the amount of consideration of Rs. 8,00,000/- from the Plaintiff declaring the existing DEED OF CONVEYNCE dated 11.07.2011 to be a void instrument and no Title did pass under the said Instrument unto the added Defendant Nos. 3 to 6 and in default of the parties concerned so doing within a time to be fixed by this Learned Court, the Registrar of this Learned Court be directed to execute and register at the cost of the Plaintiff a proper Conveyance conveying 50% share of the suit premises upon the Plaintiff depositing Rs. 8,00,000/- in this Learned Court. (g) Deed directing delivery of possession of the portion of the suit premises occupied by the added Defendant Nos. 3 to 6 to the Plaintiff as categorically mentioned in the DEED OF CONVEYANCE dated 11.07.2011 within a time to be fixed by this Learned Court failing which the Plaintiff do get a Decree for eviction of the Defendant Nos. 3 to 6 and their servants and agents for recovery of possession of the portion of the Premises No. 21/2, Bethune Row, Police Station Burtolla, Kolkata 700006 morefully described in the Schedule ‘B’ of the Plaint. (h) for permanent injunction restraining the added Defendant Nos. 3 to 6 from claiming any right or parting with possession or from dealing with the undivided 50% share of the suit property possession whereof they allegedly obtained from the Defendant Nos. 1 and 2 upon execution of the purported DEED OF CONVEYANCE dated 11.07.2011. (f) for appointment of Receiver/Commissioner. (j) for leave under Order 2 Rule 2 of The Code of Civil Procedure. (k) for cost of the suit and Advocate’s fees. (l) for such other relief or reliefs to which the Plaintiff may be entitled at law and equity.” 3. Thereafter, on an application being filed alleging violation of an injunction order passed by the trial court by virtue of the defendant nos. (k) for cost of the suit and Advocate’s fees. (l) for such other relief or reliefs to which the Plaintiff may be entitled at law and equity.” 3. Thereafter, on an application being filed alleging violation of an injunction order passed by the trial court by virtue of the defendant nos. 1 and 2 transferring their share in the suit property in favour of the defendant nos. 3 to 6 by a sale deed dated July 11, 2011, the trial court passed an order under XXXIX Rule 2A of the Code of the Civil Procedure, inter-alia, declaring such sale to be a nullity. 4. The present amendment was sought to incorporate facts pertaining to the aforesaid proceeding for violation of the order passed therein and to modify prayer (f) of the previously amended plaint, thereby truncating such prayer to the extent that a direction for a deed of reconveyance to be executed by the defendant nos. 3 to 6 in view of the sale in their favour was sought. 5. Learned counsel for the petitioners in both the matters argue that the application for amendment, virtually seeking to incorporate a prayer of prior sale, as contemplated in Section 4 of the Partition Act, was not maintainable at the present stage of the suit. 6. Moreover, it is argued that the amendment sought would change the nature and character of the partition suit itself. It was further submitted on behalf of the petitioners that the current amendment, seeking a direction for the execution of a sale deed by the defendant nos. 1 and 2 in favour of the plaintiff was barred by limitation, in view of the amendment application having been taken out in the year 2018, whereas the sale deed was executed on July 11, 2011, that is, more than three years prior to the amendment. 7. Learned counsel for the petitioners also submit that the relief sought by way of the present amendment was not maintainable in law and those could not be permitted to be incorporated in the plaint. 8. Learned senior counsel appearing for the opposite party nos. 1 and 2 in both the matters argues that the amendment was absolutely necessary in view of the subsequent developments. 8. Learned senior counsel appearing for the opposite party nos. 1 and 2 in both the matters argues that the amendment was absolutely necessary in view of the subsequent developments. The developments as to an order being passed by the trial court under Order XXXIX Rule 2A of the Code, thereby declaring the sale deed dated July 11, 2011 a nullity, was necessary to be brought in. 9. This apart, the original relief of reconveyance by the defendant nos. 3 and 6 was no longer necessary or maintainable in view of the transferees by the deed of sale dated July 11, 2011, that is the defendant nos. 3 to 6, having lost title in the property by virtue of the order passed under Order XXXIX Rule 2A of the Code. 10. As such, there cannot arise any question, it is argued, of the amendment being barred by limitation. 11. It is also submitted that, in the year 2011 itself, an application of a similar nature as the relief sought by amendment, seeking a direction for execution of a sale deed by the defendant nos. 1 and 2, was filed by the plaintiff and as such, the plaintiff had come within time with clean hands. 12. A comparison between the amendment now sought and the previously amended plaint makes it clear that only the subsequent developments as regards the factum of the sale deed dated July 11, 2011 being declared a nullity were sought to be brought in primarily by such amendment. Such facts, in any event, are germane for a proper and complete adjudication of the suit. 13. As regards the “new” relief sought to be brought in, the same was not a fresh relief sought by the amendment but was only a replacement of the previous relief (f) of the plaint, thereby attempting to relinquish the prayer of the plaintiff for seeking a direction for execution of a deed of reconveyance by the defendant nos. 3 and 6, which relief had become redundant by virtue of the sale deed, conferring right on the defendant nos. 3 to 6, being declared a nullity in the interregnum. 14. As such, no new relief was sought to be brought in by way of the current amendment and no question of the same being barred by limitation can arise. 3 and 6, which relief had become redundant by virtue of the sale deed, conferring right on the defendant nos. 3 to 6, being declared a nullity in the interregnum. 14. As such, no new relief was sought to be brought in by way of the current amendment and no question of the same being barred by limitation can arise. As to the question of such relief not being maintainable in law, it would be premature for this court or the trial court to consider the merits of such relief at the present juncture, while taking up the amendment application, which approach, if adopted, would be contrary to settled law. 15. This apart, such portion of the relief was already there in the previously amended relief and is not a new prayer and as such, there is no alteration in the previous position to permit the defendants to take such a maintainability point at this juncture. 16. Hence, no interference is required with the impugned order. 17. However, the defendants are permitted to file their respective additional written statements to the amended plaint within a fortnight from this date in the court below. 18. Accordingly, C.O. No. 3718 of 2018 and C.O. No. 3731 of 2018 are dismissed on contest, thereby affirming the order impugned therein. 19. There will, however, be no order as to costs. 20. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.