Tripura High Court
Swapan Kr. Majumder And Ors vs Ashok Majumder And Anr on 11 May, 2018
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRP 9/2018
Swapan Kr. Majumder and ors.
----Petitioner(s)
Versus
Ashok Majumder and anr.
----Respondent(s)
For Appellant(s) : Mr. DK Biswas, Advocate
For Respondent(s) : Mr. PK Pal, Advocate
Mr. T. Debbarma, Advocate
HON'BLE MR. JUSTICE ARINDAM LODH
Order
11/05/2018
Heard Mr. DK Biswas, learned counsel appearing for the
petitioner as well as Mr. PK Pal, learned counsel appearing for the respondent no. 1 and Mr. T. Debbarma, learned counsel on behalf of the remaining respondents.
This is a petition under Article 227 of the Constitution of India directed against the order dated 26.10.2017 passed by the learned Civil Judge, Senior Division, Court no.2, Agartala, West Tripura in T.S. (Partition) 118 of 2012 wherein the petitioner has challenged the survey report and the distribution of land thereof which has been accepted by the learned trial court.
At the outset Mr. Biswas, learned counsel has assailed the survey report and the map prepared by the surveyor at the direction of this court. I find the survey report at Annexure 3 of the petition. According to Mr. Biswas, learned counsel, this court has categorically directed the trial court to survey the land and to make partition of the suit land amongst all the co-parceners and also to earmark the water point and the land for this purpose for common use of all the co-parceners of the land.
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Primarily, Mr. Biswas, learned counsel has stressed on two issues: (i) non marking of the water point and the space therefor; and
(ii) no fair distribution of land amongst the co-parceners.
The learned counsel drawing my attention to the map has submitted that there is no earmark of water point as well as land space left for the common use of the said water point.
Contending the second issue, Mr. Biswas, learned counsel has submitted that the principle of equity speaks that the land has to be partitioned amongst the co-parceners proportionately considering their respective shares. He has pointed out that the lands are equally distributed amongst all the co-parceners in measurement i.e. all the co-parceners have received the same quantity of land measuring 579 sq. ft., but it cannot be said that it is the equitious distribution of the suit land. For example, he has stated that the co-parceners who has the advantage of using the front portion will get lesser quantum of land compared to the co-parceners who have got the rear portion of land following the principle of equity.
Per contra, Mr. Pal, learned counsel appearing for the respondent no.1 and Mr. T. Debbarma, learned counsel appearing for the remaining respondents have submitted that the land has been measured in accordance with the direction passed by this court in connection with case no. CRP 31 of 2014 as well as in the Review petition no. 01 of 2015.
Thus, the rival submissions, as aforesaid, took me to take note of the order dated 18.08.2014 passed by this court in connection with case no. CRP 31 of 2014 wherein this court had made the following observation and direction:
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" As such, the submission of Mr. Bhattacharjee, learned counsel for the petitioners does not find any support as the Civil Judge, Sr. Divn. Court No.2, Agartala, West Tripura has categorically directed the co-sharers to get the joint property land partitioned in equal share. As regards keeping land over which the water supply point is situated as the joint property, the co-sharers or the petitioners without even approaching the court could have left the water supply point area outside the ambit of partition. But for extra anxiety that the petitioner has demonstrated, he has approached this court and this court does not find any merit in this petition.
Accordingly, this petition stands dismissed. However, before parting with the record as it has been agreed to by the learned counsel appearing for the parties that the plaintiff and the defendants do not have any objection if the land where the water supply point is situated is kept in the joint property for use of all the co-sharers. Hence, while effecting the partition, the land where the water supply point is situated be kept out of the partition for use of all the parties and that land may be treated as the joint property".
The learned counsel appearing for the respective parties have submitted that after the said order dated 18.08.2014 there was a review petition bearing no. 1 of 2015 wherein this court had observed that if it appears that all the coparceners have taken their individual water supply connection then the joint water supply point shall be discontinued, making necessary information to the Agartala Municipal Corporation. In that event, the coparceners shall be at liberty to determine about the use or disposal of the joint land, on which the water supply point at present is set up. This order was made part of the order dated 18.08.2014 passed in CRP 31 of 2014.
I have given my bird's eye view to Annexure-3, the physical survey report for the suit land and the map thereof. From the map, I find that there is no earmarking of the common water passage as well as the water point as was directed by this court in the order dated 18.08.2014 as well as the order dated 13.03.2015.
While allowing the survey report and the map therein, the learned court, perhaps has lost its sight to the order passed by this court in CRP 31 of 2014 wherein this court has observed and directed that while effecting the partition, the land where the water supply point is situated be kept out of the partition for use of all parties and Page 4 of 5 that the said land may be treated as the joint property. The trial court could not read and construe the said directions of this court properly in its letter and spirit at the time of accepting the survey report and the map showing the partition of the land. The intention of this court was very clear that water supply point and the space required for this would not be partitioned but that does not mean that the said space would not be earmarked as joint property with equal right to use by all the co-parceners.
Hence, in my considered view, the surveyor has committed an error in non-indicating the land space left over for the water point, which the trial court could not visualize or did not consider.
Taking the issue no. (ii), I find that the land has been distributed amongst the co-parceners with equal shares having equal quantum of land. In my considered view, in a partition suit, the mere distribution of the land equally is not the concept of granting equitious relief and to partition the land equally, more particularly, when any of the co-parceners raises his/her objection to such distribution of land. In my view, in a partition suit, the land is to be distributed in a manner which would be just and fair and following the principle of equity, which is not considered by the trial court while accepting the survey report.
The partition of a land does not mean a mere partition, but consideration of the valuation of the respective shares of the land, distributed amongst the co-parceners is also one of the important components. The person/persons who have been given the advantage of using or enjoying the front portion of the land on the road side would fetch more value than the land distributed amongst the Page 5 of 5 person/persons on the rear side. Here, the principle of equity applies so that none of the parties feel that the distribution or partition of the land is detrimental to his/her interest.
According to me, the trial court has totally ignored those components of partition and has committed an error in accepting the report of the surveyor.
For the reasons assigned herein above and with a view to do complete justice to the parties to the suit, it is directed that the trial court should re-survey the land with a clear direction to partition the suit land proportionately and equally as indicated in the above discussion.
Viewed thus, I set aside the order dated 26.10.2017 passed by the trial court in TS(P) 118 of 2012 and invoke the power under Article 227 of the Constitution of India remanding the case back to the trial court to partition the suit land taking into account the principles, as discussed above with a further direction to complete the entire process within a period of 3(three) months from the date of receipt of the copy of this order.
Accordingly, the revision petition stands disposed of. There shall be, however no order as to costs.
JUDGE Saikat