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2022 DIGILAW 357 (CAL)

Sristhidhar Aditya v. Nilima Dutta

2022-03-07

AJOY KUMAR MUKHERJEE, SOUMEN SEN

body2022
JUDGMENT : 1. The appellants are not represented, nor any accommodation is prayed for. The appellants remained unrepresented since January 2022. The appellants were given several opportunities to appear and make their submission on the question of admission of the appeal. in view of our last order dated February 9, 2022, we take up the matter to find out whether any substantial question of law is involved in favour of admission of the appeal, or not. 2. The appeal is directed against judgment and decree dated November 26, 2018 passed by the learned Additional District Judge at Kalna, Purba Bardhaman, in Title Appeal No. 13 of 2014 thereby affirming the judgment and decree dated July 25, 2014 passed by the learned Civil Judge (Senior Division) at Kalna in Title Suit No. 19 of 2004. 3. The plaintiffs/appellants filed a suit for declaration and partition by metes and bounds and for other reliefs. In the plaint, it was stated that the suit property previously belonged to one Durjapada @ Dijwapada and Rajendra having eight annas share each therein and cadestral survey record of rights (CSROR) was prepared in their names. On the death of the said Durjapada, his son, namely, Narayan, inherited the same. Subsequently, a Money Execution Case being No. 513 of 1933 was instituted in connection with the suit property, in which Rajendra deposited money in the auction sale, as a result Narayan relinquished his share in plot No. 1100 in favour of the said Rajendra, but on the death of Narayan, his wife and daughter, being his legal heirs, sold away the said plot of land in favour of one Biswanath on June 1, 1983, who subsequently transferred the said plot of land in favour of one Nilima Dutta on April 30, 2004 by way of a registered deed of sale. 4. The defendants in their written statement admitted that the suit property belonged to Durjapada @ Dijwapada and Rajendra in equal share, but denied the other allegations made in the plaint. They stated that the suit was barred by law of limitation and the same was bad for non-joinder of necessary parties. 4. The defendants in their written statement admitted that the suit property belonged to Durjapada @ Dijwapada and Rajendra in equal share, but denied the other allegations made in the plaint. They stated that the suit was barred by law of limitation and the same was bad for non-joinder of necessary parties. according to the defendants, the suit property along with the other property left by the predecessor in interest of the said Durjapada and Rajendra has already been partitioned between them having eight annas share each by way of amicable settlement by which Durjapada obtained plot no. 1100 and Rajendra obtained plot no. 1090 and the plot no. 1102 was obtained by them having eight annas each therein and while the legal heirs of the said Durjapada were in possession over the same, they sole away plot no 1100 and half share in plot no. 1102 in favour of another by way of registered deeds of sale on June d1, 1983 and July 7, 2004 respectively. The defendants further stated that presently, the plaintiffs/appellants have no right, title, interest and possession over the plot no. 1100 and rest eight annas share in plot no. 1102 but with a view to harass them, the plaintiffs/appellants filed the suit, which is liable to be dismissed with cost. 5. On the basis of the aforesaid pleadings certain issues were framed and the parties adduced their respective evidence – both oral and documentary. 6. The trial court dismissed the suit by holding that the suit was not maintainable. 7. Being aggrieved, the plaintiffs/appellants filed the appeal before the lower appellate court. the lower appellate court found that Sri Shristidhar Aditya and Sri Bansidhar Aditya are still alive and, as such, no question would arise in obtaining eight annas share in the said plot of land with the legal heirs of Narayan Aditya, the predecessor of defendants no. 3 to 5. The lower appellate court further found that the scheduled plots were belonged to one Durjapada and Rajendra having eight annas share each therein. 8. It appears from the evidence on record that the scheduled property was not partitioned either by decree of the court or by registered deed of agreement, but according to the respondents, the scheduled property had already been partitioned between the predecessor of the plaintiffs/appellants and the defendants/respondents no. 3 to 5 by way of amicable settlement. 8. It appears from the evidence on record that the scheduled property was not partitioned either by decree of the court or by registered deed of agreement, but according to the respondents, the scheduled property had already been partitioned between the predecessor of the plaintiffs/appellants and the defendants/respondents no. 3 to 5 by way of amicable settlement. On that basis they were in possession of the same and got their names recorded in the record of rights. The defendants/respondents during the trial and in course of argument had admitted that the appellants had obtained plot no. 1090 and eight annas share in plot no. 1102. According to them the scheduled property have already been partitioned by way of amicable settlement and on the strength of such partition, the parties are in possession of their respective share in the plot in question and while they were in possession, they transferred it by way of deed of sale dated August 1, 1987 and July 7, 2004 with full knowledge of the plaintiffs/appellants. Therefore, the partition of the scheduled property does not arise. 9. The trial court as well as the lower appellate court in order to come to a finding examined the evidence on record, both oral and documentary, and observed that admittedly one Maya, Annapurna and Chhabi are the three sisters of the plaintiffs/appellants. As such, they are the necessary party to the suit since according to the Hindu Succession Act, 1956, they are also entitled to have share in the property left by their father, that is, Rajendra, but it is curious enough that the appellants did not implead them in the instant suit in any of the category, even no proper explanation has been given in the plaint in question. 10. Once it appears during the trial that other co-sharers have been left out, it is the duty of the parties to implead such co-sharers as they are equally entitled to their respective shares. It further transpires during the trial that the scheduled property is bastu land and all the purchasers of plot no. 1100 and half portion of plot no. 1102 are not the members of such Aditya family. Therefore, in view of provisions of Section 4 of the Partition Act, 1893, the co-sharers of those undivided plots have the rights of pre-emption, when they themselves filed a suit for partition. 11. 1100 and half portion of plot no. 1102 are not the members of such Aditya family. Therefore, in view of provisions of Section 4 of the Partition Act, 1893, the co-sharers of those undivided plots have the rights of pre-emption, when they themselves filed a suit for partition. 11. The trial court and the lower appellate court have taken into consideration that Narayan, son of Durjapada relinquishes right, title and interest in respect of plot no. 1100 on June 1, 1983 by way of a registered deed of sale, but the appellants did not make any prayer for pre-emption in respect of that plot of land. It is an admitted position that Biswanath is not a member of Aditya family and curiously the appellants did not take steps for pre-emption of plot no. 1100 and by reason of the intervention of laws of limitation, the said right extinguishes on the date of filing of the suit. 12. On such consideration, we do not find any substantial question of law involved in this appeal. 13. The second appeal is, therefore, summarily dismissed under Order XLI Rule 11 of the Code of Civil Procedure. 14. There will be no order as to costs.