Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 803 (CAL)

Balaichand Sau v. Brindaban Dasadhikari

2019-08-14

BISWAJIT BASU

body2019
JUDGMENT : Biswajit Basu, J. The plaintiffs of Title Suit No. 56 of 2013 are the petitioner of both the revisional applications. The petitioners in the said suit have prayed for decree of declaration of their 1/3rd undivided share in the suit schedule bastu 'Ka' property with a further declaration that defendant no. 1 is a stranger transferee. The plaintiffs in the said suit have further prayed for a decree of permanent injunction restraining the defendants from entering into the suit property by dispossessing the plaintiffs and without effecting partition of the suit property. 2. In the said suit the plaintiffs on December 12, 2013 filed an application for injunction restraining the defendant no. 1 from entering into the suit property and from making any construction therein. The plaintiffs on March 26, 2013 filed another application in the said suit for mandatory injunction thereby praying demolition of the structure allegedly constructed by the opposite party no. 1 between the period of February 19, 2013 to February 22, 2013. The learned Trial Judge heard the said two applications analogously and dismissed both the applications by the Order No. 28 dated April 22, 2015. 3. The plaintiffs being aggrieved by and dissatisfied with the said judgment and order of the learned Trial Judge filed two separate miscellaneous appeals. The Misc. Appeal No. 08 of 2015 was directed against the dismissal of the application filed by the petitioners for mandatory injunction and Misc. Appeal No. 09 of 2015 which was directed against the order dismissing application filed by the petitioners for prohibitory injunction. 4. The Appeal Court below also heard the said two Misc. Appeals analogously and by the impugned judgment and order dated March 28, 2017 has dismissed both the appeals. C.O. No. 3513 of 2017 is directed against the said judgment and order dismissing Misc. Appeal No. 09 of 2015 and C.O. No. 3521 of 2017 is directed against the part of the said judgment and order dismissing the Misc. Appeal No. 08 of 2015. 5. Mr. Sahu, learned counsel appearing on behalf of the petitioners fairly submits that the petitioners in the appeal Court below did not press their prayer for mandatory injunction. In view of such stand of the petitioners before the appeal Court below C.O. No. 3521 of 2017 is dismissed as not maintainable. 6. Mr. Appeal No. 08 of 2015. 5. Mr. Sahu, learned counsel appearing on behalf of the petitioners fairly submits that the petitioners in the appeal Court below did not press their prayer for mandatory injunction. In view of such stand of the petitioners before the appeal Court below C.O. No. 3521 of 2017 is dismissed as not maintainable. 6. Mr. Sahu, learned counsel appearing on behalf of the petitioners submits that the suit property since is a 'Bastu' land and the defendant no. 1 being a stranger to the family of the plaintiffs is not entitled to the joint possession of the suit property as Section 44 of the Transfer of Property Act, 1882(hereinafter referred to as 'the said Act of 1882' in short) prohibits such joint possession. Mr. Sahu, to elaborate the ambit and scope of the second paragraph of the said Act of 1882 places reliance on the following judicial precedents of the Supreme Court as well as of different High Courts including this Court:- 1. KSHIRODE CHUNDER GHOSAL AND ANOTHER VS. SARODA PROSAD MITRA reported in 12 CALCUTTA LAW JOURNAL 525 2. LAL BEHARI SAMANTA AND OTHERS VS. GOURHARI DAWN reported in 54 C.W.N. 912 3. BOTO KRISHNA GHOSE VS. AKHOY KUMAR GHOSE AND OTHERS reported in A.I.R. (37) 1950 CALCUTTA 111 4. UDAYANATH SAHU VS. RATNAKAR BEJ AND OTHERS, 1967 AIR(Ori) 139 5. BHIM SINGH AND ANOTHER VS. RATNAKAR SINGH AND OTHERS, 1971 AIR(Ori) 198 6. SRI SURENDRA NATH ACHAR AND ANOTHER VS. SRI RAM CHANDRA AND OTHERS, 75 C.W.N. 195 7. NIL KAMAL BHATTACHARJYA AND ANOTHER VS. KAMAKSHYA CHARAN BHATTACHARJYA AND ANOTHER, 1982 AIR(Cal) 539 8. DORAB CAWASJI WARDEN VS. COOMI SORAB WARDEN ANOTHERS, 1990 2 SCC 117 9. NARASHIMAHA MURTHY VS. SUSHEELABAI (SMT) AND OTHERS, 1996 3 SCC 644 10. GHANTESHER GHOSH VS. MADAN MOHAN GHOSH AND OTHERS, 1997 AIR(SC) 471 11. ANIL KUMAR MITRA MODAK AND OTHERS VS. TAPAN KUMAR MITRA MODAK AND OTHERS, 2002 2 CalHN 539. 7. Mr. Mukherjee, learned counsel appearing on behalf of the defendant/opposite party no. 1 submits that to attract the second paragraph of Section 44 of the said Act of 1882 there must exist a dwelling-house belonging to an undivided family, it is elementary. ANIL KUMAR MITRA MODAK AND OTHERS VS. TAPAN KUMAR MITRA MODAK AND OTHERS, 2002 2 CalHN 539. 7. Mr. Mukherjee, learned counsel appearing on behalf of the defendant/opposite party no. 1 submits that to attract the second paragraph of Section 44 of the said Act of 1882 there must exist a dwelling-house belonging to an undivided family, it is elementary. He submits that there is no material on record which will support the claim of the plaintiffs or even will remotely suggest that there exist a dwelling-house in the suit property belonging to the undivided family of the plaintiffs. He, placing reliance on the decision of the learned Single Judge of this Court in the case of ANIL KUMAR MITRA MODAK Vs. TAPAN KUMAR MITRA MODAK, 2000 2 CalHN 539 submits that the case of a dwelling-house when has not even pleaded in the plaint such case cannot be considered either in the appeal or in the present revisional application. 8. Mr. Sahu, responding to the said submission of Mr. Mukherjee, submits that the suit property has been admittedly recorded in the record of rights as 'Bastu' and such recording itself satisfies the requirement of the second paragraph of Section 44 of the said Act of 1882. Heard learned counsel for the parties. Perused the materials on record. 9. The precise plaint case of the suit is that the suit land originally belonged to one Chandra Mohan Sau and on his death the suit land devolved upon his three sons namely Upendra, Vupendra and Jagannath in equal shares. On the death of Jagannath his 1/3rd share in the suit land devolved upon his son Dharani and on the death of Vupendra his 1/3rd share in the suit land devolved upon the plaintiffs. Two sons of Upendra namely Sanjay and Pravashtirtha got 1/3rd of the suit land on the death of their father and they in turn sold the same to the defendant no. 1 who is a stranger to the suit land. 10. The plaintiffs on the basis of such pleadings in the plaint of the suit is seeking an order injunction prohibiting the defendant no. 1 from enjoying the possession of his purchased property by taking aid of the second paragraph of Section 44 of the said Act, 1882. 11. 1 who is a stranger to the suit land. 10. The plaintiffs on the basis of such pleadings in the plaint of the suit is seeking an order injunction prohibiting the defendant no. 1 from enjoying the possession of his purchased property by taking aid of the second paragraph of Section 44 of the said Act, 1882. 11. In view of the nature of the claim of the plaintiffs in the suit the object and the scope of the Section 44 of the said Act, 1882 demand consideration, as such the said provision of the said Act of 1882 is reproduced below for ready reference:- "44. Transfer by one co-owner.- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house." 12. The first paragraph of Section 44 of the said Act of 1882 gives a transferee of the share of one of two or more co-owners in an immovable property a right to enforce the partition of the share in the immovable property transferred in his favour by such a co-sharer. The second paragraph of the said provision of the said Act of 1882 puts an embargo to the right of such a transferee to enjoy joint possession or other common or part enjoyment with the other co-sharers in respect of a dwelling-house belonging to the undivided family of the co-sharers. 13. The law is settled with regard to the interpretation of the meaning and ambit of the words 'Dwelling-House' and 'Undivided Family' appearing in the body of the second paragraph of the Section 44 of the said Act of 1882. 13. The law is settled with regard to the interpretation of the meaning and ambit of the words 'Dwelling-House' and 'Undivided Family' appearing in the body of the second paragraph of the Section 44 of the said Act of 1882. Those words have been elucidated in the judgments of different Courts of the country and as well the Supreme Court relied on by Mr. Sahu. There is no scope to take any contrary view to the propositions of law laid down in those judgments in interpreting the said words of the said provision of the said Act of 1882. 14. It is rightly submitted by Mr. Mukherjee, that existence of a dwelling house belonging to the undivided family of the plaintiffs is sine-qua-non to attract the second paragraph of Section 44 of the said Act of 1882. The plaint does not disclose existence of a dwelling house belonging to the undivided family of the plaintiffs. In the present case an advocate commissioner was appointed for holding local inspection of the suit property. The said advocate commissioner after conducting inspection of the suit property had submitted his report before the learned Trial Judge, the said report is not in dispute. It appears from the copy of the said report that the plaintiff nos.1, 2 and 3 have their separate houses in an around the suit property. The appeal Court below in the impugned judgment on consideration of the said report has held that only the appellant/plaintiff no. 3 has his house within suit plots. The factual position being such the plaintiffs are not entitled to take the benefit of the second paragraph of the Section 44 of the said Act of 1882 particularly when the fact of existence of a dwelling-house not being borne out of the pleadings of the plaintiffs as has been held by the learned Single Judge of this Court in the case reported in (2000) 2 CHN 539 (supra) relied on by Mr. Mukherjee. In view of the aforesaid, I am unable to accept the contention of Mr. Sahu that recording of the suit property in the relevant R.S.R.O.R. as 'Bastu' land signifies the existence of a dwelling-house belonging to the undivided family of the plaintiffs satisfying the requirement of the second paragraph of Section 44 of the said Act of 1882. Mukherjee. In view of the aforesaid, I am unable to accept the contention of Mr. Sahu that recording of the suit property in the relevant R.S.R.O.R. as 'Bastu' land signifies the existence of a dwelling-house belonging to the undivided family of the plaintiffs satisfying the requirement of the second paragraph of Section 44 of the said Act of 1882. The plaintiffs have miserably failed to make out a case under second paragraph of Section 44 of the said Act of 1882 either in the plaint or in the application for injunction thereto. 15. Summing the discussions made above this Court is of considered view the order impugned does not call for any interference C.O. 3513 of 2017 is also dismissed. No order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.