Calcutta High Court (Appellete Side)
Acyumen Complex Pvt. Ltd. And Others vs Md. Safiar Rahaman And Others on 20 March, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 822 of 2019
Acyumen Complex Pvt. Ltd. and others
Vs.
Md. Safiar Rahaman and others
For the defendants/
petitioners : Mr. Siddhartha Banerjee,
Mr. Bikramaditya Ghosh,
Ms. Soni Ojha
For the plaintiffs/opposite
party nos. 1 and 2 : Mr. Kamalesh Jha,
Ms. Srabani Biswas
Hearing concluded on : 06.03.2019
Judgment on : 20.03.2019
2
Sabyasachi Bhattacharyya, J.:‐
1.The present revision under Article 227 of the Constitution of India has been preferred against an order whereby the application of the defendants/petitioners under Order VII Rule 11 of the Code of Civil Procedure was dismissed by the court below.
2. The suit was filed by the plaintiffs/opposite party nos. 1 and 2 for the following reliefs:
"A. Preliminary Decree for Partition of the Suit Properties. B. To appoint Partition Commissioner for effecting Partition of the Suit Properties on Defendants' failure to effect Partition within the time to be fixed by the Ld. Court with the direction upon the Ld. Partition Commissioner to prepare Partition Map after Partitioning the Suit Properties depicting Plaintiffs' share of land in each Suit Plots and to submit Map. Field Book, Report in Court.
C. To accept the Report of the Ld. Partition Commissioner and to pass Final Decree treating those Report, Map, Field Book etc as part of the Final Decree.
D. Permanent Injunction restraining the Defendants, their men, agents, servants and representatives from causing any damage of the Suit Properties and from changing the nature and character thereof and from undertaking any construction therein and from 3 removing Earth and from putting extra Earth therein and from encumbering the Suit Properties in any manner and from dispossessing the Plaintiffs there from.
E. Temporary and Ad‐interim injunction in terms "D".
F. Cost of the Suit.
G. Any other Relies or Reliefs the Plaintiffs may be found entitled to as per Law, Equity and
Justice."
3. The defendants/petitioners took out the application for rejection of plaint primarily on the premise that no cause of action for partition was disclosed in the plaint.
4. It is argued on behalf of the petitioners that there was a misjoinder of causes of action since the plaintiff no. 1 and the plaintiff no. 2 were admittedly owners of separate properties, comprised respectively in schedule A and schedule B of the plaint. Learned counsel relies on the averments made in paragraph nos. 3 and 4 of the plaint in this regard. The said paragraphs respectively mentioned that the "A" schedule property was purchased by the plaintiff no. 1 and that the "B" schedule property was purchased by the plaintiff no. 2.
5. Next placing reliance on the schedules of the plaint, learned counsel submits that the plots included in the two schedules do not entirely tally with each other. Furthermore, it is argued that the deeds of title on which the plaintiffs relied on and mentioned in the plaint as well as filed in the court below, show that the two plaintiffs purchased demarcated plots of land from their respective vendors.4
6. As such, it is submitted, the plaintiffs do not have any cause of action for a partition suit. The plots purchased by the plaintiff no. 1 and plaintiff no. 2 respectively are distinct and separate from each other.
7. It is further argued that all the defendants are not co‐owners of each of the properties described in the schedules to the plaint and as such the suit was bad for misjoinder both causes of action and parties.
8. Learned counsel submits that the plaintiff no. 2 cannot have any cause of action for schedule "A" property, nor can the plaintiff no. 1 have any cause of action in respect of schedule "B" property of the plaint.
9. It is lastly argued that the impugned order is devoid of reasons and as such ought to be set aside on that score as well.
10. Learned counsel for the plaintiffs/opposite party nos. 1 and 2, being the contesting opposite parties, argued that the plaintiffs purchased undemarcated shares, mostly from the same plots. It is argued that even the sale deeds relied on by the plaintiffs indicate that the purchased properties were not demarcated. The jointness of the properties has been pleaded in several places of the plaint.
11. Learned counsel for the opposite party nos. 1 and 2 cites a judgment reported at AIR 1948 Pat 317 [Delo Singh vs. Jagdip Singh and others], wherein a division bench of the Patna High Court held inter alia that although the ordinary rule is that a suit for partition must embrace all properties owned by the parties thereto, there is also the complementary 5 rule that the suit for partition cannot include properties in which each of the parties does not claim an interest. The division bench reiterated the principle laid down in a judgment of this court to the effect that the plaintiff may confine his application to the court to that particular part of the property which he is desirous of having divided; but then it follows from the view that in a suit so brought, it will always be open to the other parties to show that that part of the property ought not to be divided, or could not fairly be divided without taking into consideration the rest of the property and dividing it also.
12. Relying on the above judgment, learned counsel for the opposite party nos. 1 and 2 argues that the plaintiff in a partition suit can confine his prayer for partition to his part of the property.
13. Learned counsel for the opposite party nos. 1 and 2 next relies on a judgment reported at AIR 1923 Cal 501 [Rajendra Kumar Bose vs. Brojendra Kumar Bose], wherein a division bench of this court held that although as a general rule all joint property of the co‐ tenants must be included in a partition suit, it is within the power of co‐tenants by mutual agreement to make a partition of a part only of the joint property, retaining the rest in common.
14. As such, it is argued that the trial court was justified in dismissing the application for rejection of plaint.6
15. It is seen from a plain and meaningful reading of the plaint, that although the plaintiff no. 1 has purchased the schedule "A" property and plaintiff no. 2 the schedule "B"
property, some of the plots out of which they purchased the properties‐in‐question were common, although the plot numbers in their entirety are not identical.
16. The schedules of the deeds, relied on in the plaint and produced in the court below, reveal that the properties sold thereby were undemarcated, although in places of the deeds there were stray comments as to the vendors being in exclusive possession of their portions of the property. However, the narratives in the deeds indicate that the vendors of the plaintiffs had acquired the property mostly by inheritance and that the properties owned by the said vendors were merely shares in a larger chunk of property.
17. Even the descriptions in the plaint schedules do not indicate that the properties owned by the two plaintiffs were distinct and demarcated.
18. Nowhere in the plaint or in the deeds has it been mentioned that there was any partition by metes and bounds or that distinct and separate properties were sold by the said deeds. The "exclusive possession" mentioned in the deeds has to pertain to the possession of the respective vendors in their shares of the suit property, which had to be joint with other co‐sharers in the context of the rest of the sale deeds.
19. As such, there is every chance of the entire suit property being the part of an undemarcated, unpartitioned landmass, which could very well furnish the subject‐ matter and cause of action for a partition suit.
7
20. The properties of the plaintiffs being denoted by separate schedules to the plaint pertained to such properties having been purchased by separate deeds and does not necessarily gave rise to the presumption that those are distinct, demarcated plots.
21. A glance at other portions of paragraph nos. 3 and 4 of the plaint than which have been placed by the defendants/petitioners clearly indicate that the suit properties are in joint possession of the plaintiffs with co‐sharers. It has further been averred in the plaint that the names of the plaintiffs have been recorded in the records‐of‐rights according to their shares.
22. In paragraph no. 5 of the plaint, it is categorically averred that the vendors of the plaintiffs were in joint possession with their co‐sharers according to their respective shares when they transferred the property in favour of the plaintiffs.
23. Paragraph no. 6 of the plaint, on the other hand, pleads that the defendant nos. 1 to 72 appear to have purchased shares from the plaintiffs' co‐sharers or the plaintiffs' vendors' co‐sharers.
24. Paragraph no. 7 of the plaint states categorically that the suit properties are in joint possession of the parties and the same were never partitioned by metes and bounds amongst the co‐sharers before.
25. In paragraph no. 9 of the plaint, the plaintiffs state that the names of the defendants also appear in the records‐of‐rights with respect to their shares in the suit plots. 8
26. In paragraph no. 13 of the plaint, the suit property has again been alleged to be joint properties of the parties, required to be partitioned by metes and bounds for convenience of possession of the parties and for development of the suit properties.
27. It has been averred in various paragraphs, including paragraph nos. 11, 14, 15 and 16 that the defendant nos. 1 to 72 started removing earth from the suit property and that the defendants have refused to accede to the request of the plaintiffs to partition the suit property.
28. Again, paragraph no. 16 of the plaint categorically states that cause of action of the suit arose on and from 15‐05‐2017 when the defendants refused partition and threatened to grab the plaintiffs' property.
29. As such, the respective cases of the parties ought to be put to the test of evidence to ascertain the merits of the claims of both sides.
30. As is well‐settled, a plaint can be rejected only if on a plain and meaningful reading of the same any of the fetters stipulated in Order VII Rule 11 of the Code of Civil Procedure is evident.
31. In the present case, the cause of action of the suit has been clearly disclosed in the plaint and there is no question of any ex facie bar of law.
32. Although the reasons for dismissal of the application for rejection of plaint, as given in the impugned order, were cryptic, the conclusion therein was correct. 9
33. As such, there is no occasion to set aside the said order.
34. Accordingly, C.O. No. 822 of 2019 is dismissed, thereby affirming the order impugned therein.
35. There will be no order as to costs.
36. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )