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2021 DIGILAW 193 (CAL)

Prafullya Mondal v. Kola Bala Mondal

2021-03-24

SHAMPA SARKAR

body2021
JUDGMENT Shampa Sarkar, J. - The revisional application arises out of an order dated May 30, 2019 passed by the learned Civil Judge (Senior Division), 2nd Court at Alipore, District 24-Parganas (South), in Title Suit No. 58 of 2012. The learned Court below by the order impugned directed the Commissioner to measure the building ('B' schedule) as a part of the 'A' schedule property and to assess the valuation afresh. The cost of the Commissioner for measuring the building was directed to be paid by the defendants/opposite parties. 2. Title Suit No. 58 of 2012 is a suit for declaration partition and injunction. The petitioner is the plaintiff in the suit. The plaint case is that the suit property consisted of 12 sataks/decimals bastu land, 10 sataks/decimals pukur (pond) and 3 sataks/decimals of doba comprising in RS Dag Nos. 77, 77/867, 75 and 76 respectively, in Mouza Sampamirza Nagar, Police Station Maheshtala, District 24-Parganas (South). That originally the suit lands belonged to the predecessor-in-interest of the parties to the suit, namely Panchu Mondal alias Panchanon Mondal and his brother Atul Mondal. Both Panchu and Atul owned the property jointly each having moiety share. Panchu and Atul arrived at an amicable demarcation of the suit property, whereby Panchu started residing in the southern portion of Dag No. 77, and Atul occupied the northern portion. Panchu Mondal constructed a two storeyed dwelling house on the portion demarcated to be his share. The building has been described as the 'B' schedule property in the plaint. The plaintiff was the son of Panchu Mondal and the defendant No.1 was the wife and the defendant Nos. 2 and 3 were the sons of Atul Mondal. Panchu died on March 17, 1972. Prior to his death, he transferred his entire share of 50% in the suit property to the plaintiff by a registered deed of gift. On June 29, 1973, the plaintiff purchased 3 sataks/decimals of land appertaining to RS Dag Nos. 75 and 76 under Mouza Sampamirza Nagar, for his exclusive use as an access to his house from the municipal road. The said purchased property of the plaintiff had been described as 'C' schedule property. The plaintiff further contended that he was in exclusive possession of the 'B' and 'C' schedule property. 75 and 76 under Mouza Sampamirza Nagar, for his exclusive use as an access to his house from the municipal road. The said purchased property of the plaintiff had been described as 'C' schedule property. The plaintiff further contended that he was in exclusive possession of the 'B' and 'C' schedule property. When the defendants started creating disturbance in the plaintiff's enjoyment of the said property, the plaintiff filed the suit for declaration, permanent injunction and partition. The plaintiff's specific case was that 'A' schedule property measuring 22 sataks/decimals comprising of land and pond was an undivided property of which the plaintiff and the defendants were the cosharers. It was the further case of the plaintiff that on or about 6 sataks/decimals of the bastu land in RS Dag No. 77 in the 'A' schedule property, the predecessor-in-interest of the plaintiff constructed a two storeyed building from his own funds. 3. The defendants contested the suit by filing a written statement. It was contended by the defendants that the suit was not maintainable and was bad for non-joinder of necessary parties. That the plaint did not disclose any cause of action. It was further contended that the description of the suit property was vague and the share of Panchu Mondal was inherited by his two sons, namely, the petitioner and one Prafullya Mondal. The defendants also denied the peaceful and exclusive right and possession of the plaintiff in the respect of 'B' schedule and 'C' schedule property. 4. By a judgment and decree dated December 23, 2013, the title suit was decreed in preliminary form. The learned Court held that the suit was maintainable and came to the conclusion that 22 decimals of land including bastu and pond originally belonged to Fakir Mondal who died intestate in the year 1956. Fakir Mondal was survived by his two sons Panchu and Atul each of whom jointly inherited 11 decimals on the property. Record of rights would show that out of the said 11 decimals of land, 5 decimals of pukur and 6 decimals of bastu land had been recorded in favour of the plaintiff. That admittedly, 'A' schedule property comprising of 22 decimals of land was unpartitioned. Record of rights would show that out of the said 11 decimals of land, 5 decimals of pukur and 6 decimals of bastu land had been recorded in favour of the plaintiff. That admittedly, 'A' schedule property comprising of 22 decimals of land was unpartitioned. The learned Court below came to the conclusion that the plaintiff had proved his title over 'C' schedule property which was purchased by the plaintiff and the defendants did not have any claim over the 'C' schedule property. It was further held that 'B' schedule property was a part of the 'A' schedule property and a boundary wall could not be raised around the schedule 'B' until the land was partitioned as the boundary wall would have to be constructed on the joint land i.e. 'A' schedule property. Accordingly, the suit was decreed in preliminary form as here under:- "The suit be and the same is decreed on contest in part but without costs. It is hereby declared that the plaintiff has 50% share in the schedule 'A' property and the defendants jointly have the rest 50% share in the schedule 'A' property. The plaintiff do get a preliminary decree for partition in respect of the above declaration. The parties are hereby directed to amicably Partition the schedule 'A' property by metes and bounds in accordance to the preliminary decree for partition within three months of this judgment; failing which either of the parties can approach the court to have the property partitioned by metes and bounds by appointment of a Partition Commissioner." 5. Thus, according to the preliminary decree, the learned Court below declared that the plaintiff had 50% share in the 'A' schedule property and the defendants jointly had 50% share in the 'A' schedule property. As the parties failed to partition the property amicably as per the preliminary decree, a partition Commissioner was appointed. When the partition Commissioner went to measure the land for the purpose of effecting partition for allotment of shares, the defendants filed an application before the learned Court below and prayed that the Commissioner be directed to effect partition by metes and bounds of the 'B' schedule property as well and further be directed to take measurement of the structure ('B'- schedule) standing on the 'A' schedule property. The defendants urged that they were co-sharers of the two storeyed building that i.e. the 'B' schedule property standing on 'A' schedule property. The defendants prayed that the partition Commissioner should be directed to take measurement of the structure standing on the 'A' schedule property and to ascertain the valuation of the said structure and thereafter decide the allotment of the 'A' and 'B' schedule property in respect of the parties. 6. The said application came up for hearing before the learned Court below and the learned Court below by the order impugned, directed that for the purpose of calculation of the valuation of the structure i.e., 'B' schedule property, the partition Commissioner should be directed to measure the 'B' schedule property and to arrive at a valuation. The Court held that as 'B' schedule property was a part of 'A' schedule property, the valuation of the said property upon measuring the building should be ascertained by the partition Commissioner, for the purpose of drawing up the final decree. 7. The plaintiff aggrieved by the aforementioned order has preferred this revisional application on the ground that the learned Court below acted illegally and with material irregularity by allowing the application of the defendant by directing measurement and assessment of the valuation of the two storeyed building, that is, 'B' schedule property. That the learned Court below went beyond the preliminary decree and modified the same. The preliminary decree only declared that the plaintiff and the defendants jointly had 50% share each on the entire land comprised of 'A' schedule property. The decree did not mention that the defendants had a share in the two storeyed building that is, 'B' schedule property. That it was the specific plaint case that 'B' schedule property was a two storeyed building standing on 'A' schedule property which was built by Panchu out of his own funds on the southern side of the 22 decimals of land. Moreover, it was also that the case of the parties that the predecessor of the defendants had also built a house in the northern side of the 'A' schedule property and the defendants were enjoying the same. Moreover, it was also that the case of the parties that the predecessor of the defendants had also built a house in the northern side of the 'A' schedule property and the defendants were enjoying the same. The record of rights of the plaintiff was also adduced as evidence and marked as an exhibit by the learned Court below, from which it would appear that the portion of 11 decimals being 6 decimals of bastu land and 5 decimals of pukur in the 'A' schedule property was in the name of the plaintiff, and as such, the learned Court below did not declare partition of the 'B' schedule property. 8. Mr. Bhattacharya, learned Advocate appearing on behalf of the petitioner submitted that the clear case of the plaintiff was that 22 decimals of the suit property comprising of land and pukur being 'A' schedule property was a joint property of which the plaintiff and the defendant were co-sharers. But 'B' schedule property was a two storeyed building standing on the southern side of 'A' schedule property which was built by Panchu from his own funds and Panchu was enjoying the same. Similarly, the defendants were also enjoying a part of the 'A' schedule property by constructing their own house. According to Mr. Bhattacharya, the partition would be only of the 'A' schedule property i.e. 22 decimals of land and the measurement of the house for the purpose of valuation of the house should not be taken for partition by metes and bounds for the purpose of drawing up the final decree. None of the parties challenged the preliminary decree. It was also not held by the Court below that 'B' schedule property i.e. the two storeyed building that was constructed by Panchu was a joint property. He relied on the cross-examination of D.W.1 in support of his contention. D.W.1 was the son of Atul Mondal and the defendant No. 2 in the suit. The D.W.1 deposed on behalf of himself and on behalf of the other defendants as well. 9. Mr. He relied on the cross-examination of D.W.1 in support of his contention. D.W.1 was the son of Atul Mondal and the defendant No. 2 in the suit. The D.W.1 deposed on behalf of himself and on behalf of the other defendants as well. 9. Mr. Subrata Basak, learned Advocate appearing on behalf of the defendants/opposite parties submitted that when the learned Court below passed the preliminary decree holding that the parties had 50% share each on 'A' schedule property, it would mean that 'B' schedule property being a part of 'A' schedule property should also be treated as joint property and the measurement of 'B' schedule property should be taken to ascertain the proper valuation so that the partition could be effected by metes and bounds by drawing up the final decree. He referred to the averments in the written statement and specific denial by the defendants that Panchu had constructed the two storeyed building being 'B' schedule property. He submitted that the learned Court below rejected the prayer of Panchu to construct the boundary wall on the 'B' schedule property as the property was a joint property. According to him, the Court was conscious of the fact that the 'B' schedule property was a part of 'A' schedule property and as such, did not mention the 'B' schedule property separately on the assumption that 'B' schedule was a part of the 'A' schedule property. 10. Heard the learned Advocates for the respective parties. It was the clear case of the plaintiff that the 'A' schedule property comprising of 22 decimals consisting of bastu of land and pukur in RS Dag No. 77 and 77/786 was an undivided/joint property of which the plaintiff and the defendants were co-sharers. It was the further case of the plaintiff that 'B' schedule property which was a house built by Panchu situated on 6 decimals of land on the 'A' schedule property was built by Panchu from his own funds and was being enjoyed by Panchu exclusively. It was also the plaint case that northern side of 'A' schedule property was occupied by Atul Mondal predecessor of the defendants, who was enjoying his portion by constructing a house. It appears from the judgment and preliminary decree that the learned Court below did not allow the boundary wall on the 'B' schedule property because the land was undivided. It was also the plaint case that northern side of 'A' schedule property was occupied by Atul Mondal predecessor of the defendants, who was enjoying his portion by constructing a house. It appears from the judgment and preliminary decree that the learned Court below did not allow the boundary wall on the 'B' schedule property because the land was undivided. But the declaration of share in the proportion of 50% each was granted in respect of 'A' schedule property only. In my opinion, the learned court declared that the parties had 50% share each on the 22 decimals of land. 'B' schedule property has been described as a two storeyed building built by Panchu out of his own funds and the same was enjoyed by Panchu and thereafter by the successors-ininterest of Panchu. Had it been the case that the learned Court below had come to the finding that 'B' schedule was also a joint/undivided property, the said fact would have been mentioned in the decree itself. The fact that the judgment and decree were silent with regard to 'B' schedule property, it is clear that the decree was only for partition of the 'A' schedule i.e. land comprising of 22 decimals in RS Dag Nos.77 and 77/786. 11. Sushil Mondal (D.W.1) stated in his cross-examination that he claimed ownership over 11 decimals of land. He further stated that the house in which the defendants were residing was constructed by Atul Mondal and partly by him. That the said house was situated on one side of the suit plot and the plaintiff had a separate and independent house. That he was not in a position to depose on the nature of the property mentioned in 'B' and 'C' schedule. He also deposed that the defendants had 11 decimals of land on the suit property and Panchu and Atul were residing in separate houses on the suit property and that the said defendants did not have any objection if a decree for partition of 22 decimals of land belonging to Fakir Mondal (predecessor-in-interest) was allowed. 12. Thus, from the cross-examination, it is clear that the learned Court below upon considering the plaint case, the defence case and the cross-examination as also the exhibits arrived at a conclusion that the parties have 50% share each over 'A' schedule property and passed a preliminary decree. 12. Thus, from the cross-examination, it is clear that the learned Court below upon considering the plaint case, the defence case and the cross-examination as also the exhibits arrived at a conclusion that the parties have 50% share each over 'A' schedule property and passed a preliminary decree. The schedules are quoted below:- Schedule A ALL that 22 satak of land and pond appertaining Mouza Sampamirza Nagar, under Moheshtala Municipality, Police station Moheshtala, District 24 Parganas, RS khatian No RS Dag No Nature of land Area 514 77 Bastu 12 satak do 77/786 Pond/Pukur 10 satak Schedule B ALL that 6 satak of bastu land having a two storied building standing thereon appertaining to RS Khatian no. 514, RS Dag no. 77 L.R. Khatian no.447, L.R. Dag no.92, and 5 satak of pond (pukur) appertaining to RS Khatian no.514 RS Dag no.77/867 L.R. Dag no.91 LR Khatian no.447, J.L.11, Mouza Sampamirza Nagar, under Mohehestala Municipality within ward no.11 being holding no.B-3-62/100, Police station Moheshtala district 24 Parganas, butted and bounded as follows: On the East: schedule c property thereafter Municipal Road. On the West: House of Pratap Basuri. On the south: House of Khagen Mondal. On the North: house of the defendants. Schedule C ALL that 3 satak of doba appertaining to RS Khatian no.305, RS Dag No.75, L.L.11, Mouza Sampamirza Nagar, under Moheastala Municipality withing word no.11 being holding no.B-3-62/new, Police station Moheshtala District 24 Parganas, butted and bounded as follows: On the East: Municipal Road. On the West: schedule B property. On the south: House of Khagen Mondal. On the North: house of the defendants. 13. The decree is quoted below:- "The suit be and the same is decreed on contest in part but without costs. It is hereby declared that the plaintiff has 50% share in the schedule 'A' property and the defendants jointly have the rest 50% share in the schedule 'A' property. The plaintiff do get a preliminary decree for partition in respect of the above declaration. The parties are hereby directed to amicably Partition the schedule 'A' property by metes and bounds in accordance to the preliminary decree for partition within three months of this judgment; failing which either of the parties can approach the court to have the property partitioned by metes and bounds by appointment of a Partition Commissioner." 14. The parties are hereby directed to amicably Partition the schedule 'A' property by metes and bounds in accordance to the preliminary decree for partition within three months of this judgment; failing which either of the parties can approach the court to have the property partitioned by metes and bounds by appointment of a Partition Commissioner." 14. There is no controversy with the 'C' schedule property as the Court found that the plaintiff/petitioner had proved his title over 'C' schedule property. In the preliminary decree that was no mention of the 'B' schedule property. There is nothing in the judgment either, for this Court to come to the conclusion that the learned Court below also considered that 'B' schedule property was a joint property. That the order impugned amounts to travelling beyond the preliminary decree. The preliminary decree had attained finality. The cross-examination as discussed hereinabove also clearly shows that the defendants were interested in equal partition of the 22 decimals of land and they were claiming ownership over 11 decimals of land on the 'A' schedule property. 15. The order impugned is set aside and quashed. The partition Commissioner shall not take measurement of the house for the purpose of evaluation and partition. The partition Commissioner is directed to divide the 'A' schedule property into two-halves comprising of 50% share each in terms of the preliminary decree, by maintaining the respective possession of the parties on the 'A' schedule property, as far as practicable and file a report before the learned Court below. The learned court below shall proceed in accordance with law. 16. The revisional application is disposed of. There shall be no order as to costs. Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.