Mandal Vs. Netai Mondal (Dead) By LRS. & Ors.  INSC 10 (6 January
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8 OF 2009 (Arising out
of SLP (C) No. 296 of 2006) Kartick Chandra Mandal ......Appellant Versus Netai
Mondal (dead) by Lrs. and Ors. ......Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Calcutta
High Court allowing the Second Appeal filed by the respondents under Section
100 of the Code of Civil Procedure, 1908 (in short the `CPC').
appellant as plaintiff filed a suit for declaration of title and recovery of
khas possession and also of permanent injunction contending inter-alia that the
suit land in R.S. Khatian No.31 of Mouza Chandibera under P.S. Rajarhat
originally belonged to Ananda Chandra Mondal, Mubir Mondal, Bhutnath Mondal,
Gadadhar Mondal, Mathar Mondal, Kartick Mondal, Haradhan Chandra Ghosh and
Bishwanath Ghosh. While they were in joint possession in same for convenience
of possession they made an amicable partition amongst themselves and in that
partition plaintiff and proforma defendant No.3 got 12 decimals of land in plot
No.223/455 which was described in schedule A of the plaint. Subsequently, by an
amicable partition between the plaintiff and proforma defendant No.3, plaintiff
got B schedule property, that is to say, 6 decimals of land at the southern
portion of the aforesaid suit property and proforma defendant No.3 got 6
decimals of land at the northern portion of the suit plot. In this way,
plaintiff got B 2 schedule of land and C schedule of land fell in the share of
pro-defendant no.3. Thereafter, as per the case of the plaintiff by way of an
oral exchange, defendants 1 and 2 got C schedule property from proforma
defendant No.3 and they started residing thereon by constructing house. B
schedule of land was lying vacant. Plaintiff was in possession of that land by
Defendant Nos.1 and 2
threatened the possession of the plaintiff. In that background, the plaintiff
filed the suit originally for permanent injunction against defendants 1 and 2.
Subsequently, it was contended by the plaintiff that defendant Nos.1 and 2
dispossessed the plaintiff from the suit property and, therefore, the plaintiff
prayed for recovery of possession of such property. Defendant Nos.1 and 2
contested the suit by a written statement alleging inter-alia that the
plaintiff was all along since the date of partition remained separately in his
own allotted land and the defendants also were possessing the land and
structure according to their own share on the portion allotted to them. In this
background, they denied the allegation of dispossession from the suit property
made by the plaintiff. It was the further allegation of the contesting
defendants that the total land were amicably partitioned amongst themselves by
the intervention of the members of the gram Panchayat as per the family
arrangements. The parties were separated in respect of the possession of the
land in dispute and the contesting defendants after getting the plan sanctioned,
constructed the building over the allotted land. The plaintiff was not entitled
to get a decree as prayed for.
Munsiff formulated several issues and relied on certified copy of the decreed
suit. The first Appellate Court has also upheld the view of the trial Court.
The Second Appeal was admitted with the following questions of law:
(i) Whether the
learned Judge in the courts below substantially erred in law in completely
misleading, misconstruing and misappreciating the scope of the suit for
declaration, injunction and recovery of possession between the co-sharers in
the absence of any legal and valid partition and erroneously decreed the suit
on a misconception of law? (ii) Whether the learned Judge in the courts below
substantially erred in law in decreeing the suit by declaring that the
plaintiff/respondent No.1 has right, title and interest in respect of `B'
schedule suit property and for recovery of possession of the said property by
evicting the appellants therefrom inasmuch as the learned Judge in the courts
below have failed to appreciate that all the parties to the proceeding are
co-sharers having joint share in the suit property and as such before valid
partition neither of the co-sharers could be directed to vacate some portion of
the joint property? (iii) Whether the learned Judge in the courts below
substantially erred in law in dismissing the appeal on a misconception of law
inasmuch as per the provision of Section 14 of the West Bengal Land Reforms
Act, 1955 any partition among the co-sharers other than by a registered
instrument or by a decree or order of a Court is not partition at all and in
absence of any valid partition among the parties, the plaintiff/respondent No.1
cannot claim for injunction to prevent other co-sharers from enjoying joint
share in the property.
High Court answered question No.3 in favour of the present respondents and it
held that the partition, if any, did not take place prior to the introduction
of Section 14 of the West Bengal Land Reforms Act, 1955 (in short the `Act').
counsel for the appellant submitted that there was no dispute regarding the
date of partition. In fact, no issue was framed. In the plaint there was a
specific assertion with reference to the R.S.R.O.R. which undisputedly is of
the year 1955. Though the defendants filed written statement there was no
challenge to the authenticity of the R.S.R.O.R. Though the High Court noted
that there was an admission strangely it came to hold that the admission was as
regards the point of law and, therefore, decided the appeal in favour of the
counsel for the respondents, on the other hand, supported the judgment of the
High Court and submitted that though it appeared that there was no specific
issue relating to the date of partition there was denial as regards the factum
of partition as claimed.
High Court noted that the section came into force in West Bengal w.e.f.
7.6.1965 except in the areas transferred from Bihar to West Bengal.
Therefore, after the
introduction of the aforesaid provision the partition of a holding can be
effective only by registered instrument or by decree or order of a Court. There
is no dispute so far as this aspect is concerned. As rightly contended by
learned counsel for the appellant there was specific averments in the plaint as
regards the partition which refers to R.S.R.O.R. Though, there was no date of
partition indicated, a reference was made to the aforesaid document. The High
Court after having noted that none of the parties made any endeavour to
ascertain when the actual alleged partition took place came to an abrupt
conclusion that from the facts and circumstances it was clear that the
partition, if any, did not take place prior to the introduction of Section 14
of the Act. The basis for coming to such a conclusion is not clear. Further,
the conclusion of the High Court that though there may have been admission that
related to the question of law is equally unsustainable. What is the date of
partition is not a question of law.
the circumstances, we set aside the impugned judgment of the High Court and
remit the matter to the trial Court to formulate the following issues:
What is the date of
alleged partition between the plaintiff and original defendant No.3;
The parties shall be
permitted to place evidence in support of their respective stand.
trial Court shall hear the suit afresh on the aforesaid issue alone and decide
the same in accordance with law. Since the matter is pending since long, we
request the trial Court to dispose of the matter by the end of May, 2009.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)