Calcutta High Court (Appellete Side)
Shyam Sundar Chatterjee & Anr vs Tarak Nath Chatterjee on 27 August, 2019
Author: Soumen Sen
Bench: Soumen Sen, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Justice Soumen Sen
and
The Hon'ble Justice Ravi Krishan Kapur
F.A. No. 421 of 2009
F.A.T. No.308 of 2009
Shyam Sundar Chatterjee & Anr.
Vs.
Tarak Nath Chatterjee
For the Appellant No.1 : Mr. Angshuman Chakraborty, Adv.
Mr. Shivaji Mitra, Adv.
For the Appellant No.2 : Mr. P.K. Chowdhury, Adv.
For the Respondent : Mrs. Shohini Chakrabarty, Adv.
Miss. Prajaaini Das, Adv.
Hearing concluded on : 14.08.2019 Judgment on : 27.08.2019
Soumen Sen, J.: This appeal is arising out of an order passed by the Civil Judge (Senior Division), Additional Court Hooghly, dated 20th May, 2009, accepting the report of the Commissioner of partition and decreeing the suit finally.
The appellants are the co-owners of the property.
The suit property consists of 7 (Seven) cottahs and 13 (thirteen) chittaks of land, more or less, partly vacant and partly with structures. The suit property belongs to three brothers, namely, Shyam Sundar Chatterjee, 2 Madan Mohan Chatterjee (both appellants) and Tarak Nath Chatterjee, the plaintiff. The properties were jointly held by the three brothers.
Tarak Nath Chatterjee filed a suit for partition of the said property being T.S. No. 92 of 2001 before the Learned Civil Judge (Senior Division) 2nd Court, Hooghly and the said suit was later re-numbered as T.S No 72 of 2008 on transfer to the Court of Learned Civil Judge (Senior Division) Additional Court, Hooghly on 5th July 2003. The said suit was decreed ex parte in preliminary form, in favour of the plaintiff by declaring that the plaintiff is having one-third share in the suit property. The parties were directed to make amicable partition as per their one-third share each within 90 days, failing which the partition would be effected in accordance with law.
Although, the appellant no.1/defendant no.1 filed a written statement disputing the claim of the plaintiff over the suit property and the extent of his share, the defendant no.1 did not ultimately contest the suit and accepted the preliminary decree.
The defendant no. 2 is a bachelor and he did not contest the suit at all.
Since the properties could not be amicably partitioned between the brothers, a commissioner of partition was appointed. On 28th July, 2004 the plaintiff and the defendants filed their respective allotment proposals before the learned Court. The appellants/defendants proposed that the western part of the suit property with one-storied building thereon which 3 has all along been in possession of the defendant no.1 at premises no.172, C.S. Mukherjee Street should be allotted to the defendant no.1. The defendant no. 2 proposed that 30'X36' vacant land on the North-East corner of the suit property of suit premises no. 175, C.S. Mukherjee Street be allotted to him. The rest of the suit property on the South-East and middle portion thereof comprising 2 Kottah and 12 Chittacks of land with two- storied building at premises no. 175 C.S. Mukherjee Street may be allotted to the plaintiff. The plaintiff/respondent in his allotment proposal had proposed that the western part of the suit property comprising land with the one-storied building thereon may be given to the defendant no.1 but the plaintiff did not agree to the proposal for allotment for vacant land on the North-Eastern side of the suit property to the defendant no. 2. The plaintiff prayed for allotment of vacant land measuring 29'X54' on the said North Eastern portion of the suit property. The plaintiff proposed that the two- storied building standing on the middle of the suit property along with a strip of land measuring 9'X24' on the South-East portion of the suit property, leading to South Bye Lane, be allotted to the defendant no. 2.
We have considered the written submissions made by the parties before the learned Trial Court as well as the evidence adduced by the parties and the Commissioner before acceptance of the report by the lower Court. Although before us, it is argued on behalf of the defendant Nos. 1 and 2 that the first floor of middle portion that is allotted to the defendant No.2 and the inside portion of the said premises was not measured and the report is silent about the existence of any room in the first floor, we found from the 4 evidence that the defendants have prevented the Advocate Commissioner to make such inspection. The certified copy of Assessment Registrar of the Konnogar Municipality submitted on 19th March, 2019 makes it clear that the first floor and the ground floor are identical and it further reveals that in the Holding No. 175, in the ground floor, there is one room with covered veranda and a staircase leading to the first floor covered with asbestos shade. The first floor consists of one room with covered veranda constructed immediately above the ground floor.
There is no specific written objection by the defendant No.2 that he is aggrieved by the proposed allotment in this regard. It is an admitted position that the defendant No.1 and the defendant No.2 have resided together. The defendant No.2 is a bachelor. He resides with the defendant No.1 only and for all practical purposes, the defendant Nos.1 and 2 represent one group opposing the allotment of the plaintiff. Under such circumstances, a common passage amongst themselves, namely, defendant Nos.1 and 2 naturally would not cause inconvenience than holding the common passage jointly with the plaintiff against whom they are together and jointly contesting.
The plaintiff filed the suit for partition as he felt inconvenience in enjoying the suit property jointly with the defendant Nos.1 and 2. It is also clear from the respective maps submitted by the parties that the defendant No.1 raised no dispute in respect of the portion allotted to the defendant No.1. Only the portion allotted to defendant No.2 is disputed. The plaintiff and the defendant No.2 both sought for allotment of the vacant portion. The 5 plaintiff sought for that portion as he did not want to keep any portion in joint possession with the defendants and to have an exclusive possession in one side of the building. The defendant No.2 did not adduce any evidence regarding his need. However, it is clear that the defendant Nos.1 and 2 reside together. We accept the submission made on behalf of the plaintiff that if the plaintiff is allotted the middle portion as suggested by the defendants then the plaintiff would be caught in between the two brothers who are living jointly and in future this is likely to cause inconvenience to the plaintiff in peaceful enjoyment of his portion. The plaintiff is likely to face some inconvenience which he faced while possessing the suit property jointly with the other defendants. The defendant No.2 does not support the plaintiff in the suit. Although, it appears to have been raised before the learned Trial Judge as well as before the Commissioner that there is no existence of 4' wide common passage on the southern side of the building, the documents reveal that the said passage existed till December, 2004 while work of Commission was in progress. Besides, the said passage was used by the defendant No.1 and his family and also their tenant for ingress and egress in into their property. It is an admitted position that the tenant has vacated the portion under his occupation in favour of the defendant No.1 in early December, 2004 and thereafter the defendant No.1 appears to have blocked the said passage and made an opening through the Northern side with a 12 ft. gate after submissions of the Commissioner report. The Commissioner has inspected the suit property. The property in question is situated in Dag Nos.3461 and 3462 along with pucca building standing on both plots appertaining to Municipal Holding Nos.172 and 175 of C.S. 6 Mukherjee Street within Konnogar Municipality. Plot No. 3462 is on western side southern lane and plot No.3461 is on the eastern side southern by-lane. On consideration of the respective allotment suggested by the parties, the Commissioner allotted common passage to the defendant Nos. 1 and 2 because there is no separate ingress and egress for the defendant No.2. We have already recorded our reasons for agreeing to the allotment of common passage to the defendant Nos.1 and 2 to be used jointly by both of them and we feel under the facts and circumstances of the case, it was just and equitable that there was no necessity for allowing a separate passage for ingress and egress of the defendant Nos. 1 and 2. The water connection falls on the portion allotted to the plaintiff and, accordingly, the Commissioner has allowed the defendants to take the water connection to their respective portion from the common passage at their own cost. The plaintiff and the defendant No.2 were to make the privy of their respective portion at their own cost. The defendants would take electric connection and water connection at their own cost to their respective portion from the common passage. The dwelling house was given to the defendant Nos.1 and
2. The plaintiff for his own living would construct his dwelling house in his portion at his own cost. However, to facilitate the entire thing and considering the fact that it would take some time to give effect to the said partition both the parties were allowed to enjoy the privy, water connection and electricity facility one year from the date of final decree. The Commissioner has considered relevant sale deed of adjacent plots for the purpose of determining the owelty money and has assessed the amounts to be paid by the defendant Nos.1 and 2 to the plaintiff towards owelty as both 7 of them got arrears in excess of their allotment in terms of money. The defendant No.1 was directed to pay to the plaintiff Rs.1,03,038.67/- and the defendant No.2 would be required to pay a sum of Rs.52,971.67/-. The Commissioner has also noted in the report that the tenanted shade has already been removed.
The learned Counsel for the appellants was unable to demonstrate that the valuation fixed by the Commissioner towards adjustment of the owelty money was incorrect. The evidence of the Commissioner has not been demolished during his cross-examination. The learned Commissioner has given equitable distribution of all the essentials. The plaintiff was allotted existing water supply. The defendant no.1 was allotted existing electric supply and the defendant no.2 was allotted bath and privy. Besides all parties have good and convenient access to the main road. The learned Commissioner measured the suit property as per physical verification and upon verification by both the parties in presence of their respective advocates. No objection was raised during the time of commission work as regards the identification of the area of the suit property so there was no scope for relayment of fixed point. The measurements of the land and structure submitted by the learned Commissioner after physical verification is thus acceptable. The entire suit property is bounded by brick boundary wall. Moreover, no serious dispute is raised before us about the measurement of the suit property. The appellants have admitted that the municipal record would show that the total area of the suit land is more or less 7 cottas and 4 chitaks in all, which conforms to the Parcha of the 8 respective measurements produced before the commissioner at the time of identification of the properties.
The only bone of contention appears to be that separate allotment should be made to each of the co-sharer and the common passage of 4' allotted to the defendants may be inadequate having regard to a larger area available for allotment to the respective plots allotted to the appellants to be used as common passage.
We have taken note of such objection in the earlier part of our judgment and have noted that the appellants have themselves made unauthorized construction and blocked the common passage ostensibly to create an impression that the existing common passage is insufficient for enjoyment of the allotment made in their favour. Moreover, they have made an opening through the northern side of a 12 ft. gate. Having brought about such a situation they cannot now come up with a plea that there has to be a separate entrance made for each of the allottees. Apart from the fact that the defendants nos. 1 and 2 are enjoying the properties together without any dispute and inconvenience and the defendant no. 2 is a bachelor in the best interest of the parties, we feel that the separation of the property by the Commissioner was just and equitable.
Learned Counsel for the appellant no.1 has relied upon paragraph 42 and 53, 6th Edition, Chapter 7 of Mitra Law of Joint Property and Partition at page 907, 908 and 915 to show that in partitioning the dwelling house, the common procedure is to divide the dwelling house to each party as a compact block consisting of certain rooms with appurtenances thereto. If 9 necessary, one or more rooms may be divided by metes and bounds and different portions thereof may be allotted to the different co-sharers if such necessity arises. In such a case, the line of demarcation should pass over the middle parts of the walls separating the allotments keeping the walls as party walls with all the incidents thereof.
It is thus, submitted that the Commissioner has not followed such established procedure for partitioning the dwelling house.
In a partition suit, a court is required to define the shares of the parties, identify the joint properties which are to be partitioned, allocate properties to parties as per the respective shares and put the parties in possession of properties allocated to them (Rachakonda Venkat Rao v. R. Satya Bai, (2003) 7 SCC 452).
Partition is really a process by which joint enjoyment of the property is transformed into an enjoyment severally. Each co-sharer has an antecedent title and therefore there is no conferment of new title (Vasantiben Prahaladji Nayak v. Somnath Muljibhai Nayak, (2004)3 SCC 376).
There cannot be any doubt that the words "metes & bounds" refer to the physical partition of one property into two parts of shares or as many parts as may be directed under the preliminary decree. The commissioner is required to divide the property into as many shares as may be directed by the order under which the commission was issued and can award sums to be paid for the purpose of equalising the value of the shares. 10
None of the parties have argued before us that the commissioner did not have the required power and authority to award compensation by way of equalisation of shares. On the question as to whether the Court can take recourse to its inherent jurisdiction to interfere with the Commissioner's report even though the Commissioner has exercised his discretion given by the Court, there are few decisions which suggest that court can invoke the inherent jurisdiction in a proper case.
In T.S. Swaminatha Odagar v Official Receiver reported at AIR 1957 SC 577; 1957 SCR 775; 1957 SCJ 501 the Supreme Court dealt with owelty money. Nonetheless, it seems that the observations make room for the application of the inherent jurisdiction of the court in a partition. If this be the true reading of the Supreme Court case, then the point no longer offers any difficulty (Debabrata v Angurbala 71 CWN 543).
Every Indian has a special sentiment attached to the house he lives in. When the same dwelling house belonging to several co-sharers are to be partitioned they ordinarily insist on partitioning the dwelling house and its appurtenance by meats and bounds keeping in view the existing positions of the co-sharers as far as practicable.
But if a co-sharer foregoes his claim to a share in the dwelling house, then the commissioner is at liberty to make division of the dwelling house among the rest of the co-sharers giving suitable compensation or allotting other property to that co-sharer in lieu thereof. Along with main dwelling house, the Commissioner has to take appropriate steps to divide the appurtenance in the manner most suitable to the parties. The veranda, 11 courtyard and the open space adjoining the dwelling house, as the case may be, should be so allotted by the Commissioner so as to be conducive to the beneficial enjoyment of the different portions of the house. Allotment of properties is a very difficult task as it involves care and may result in dispossession of a person in occupation of a particular portion of the property in question.
The Commissioner has to proceed with the matter with due care. In the instant case the commissioner before proceeding with the work of allotment had intimated the parties about the valuation of their respective shares and requested the parties to submit their likes and dislikes and preference and objection as also their capacity to pay owelty money for equalisation of allotments. The views of the parties were given due consideration. The commissioner has also invited the views from the parties about possible different allotments that may be made out in respect of a particular property so as to avoid unnecessary inconvenience to the parties. In the instant case the Commissioner of partition has in fact put the plaintiff at a relatively inconvenient position as the plaintiff would be required to construct his own dwelling house. He was allotted a vacant land. None of the defendants, at any point of time, had asked for allotment of a vacant land and to construct their own dwelling house. The interest of the plaintiff in the property in question is not in dispute. The plaintiff wants a separate unit for better and peaceful living and one of the reasons for filing the partition suit was that the plaintiff was unable to enjoy the property peacefully along with his two brothers. When a co-sharer has built a house 12 for the joint property and living with his family occupying more than his own share, it is generally recommended that the same may be allotted to him with the recommendation for compensation to the other co-sharers and the Court may accept such recommendation.
It is a general rule that the Commissioner should try to maintain the existing possession of the parties as far as practicable. (Jai Dayal v Narain AIR 1932 Lah 127: 136 IC 270). But if the possession of a co-sharer is more than his share, the Commissioner should not invariably follow such rule and may make allotment in fair and equitable way in making the allotment. (Traders and Miners Ltd. V Dhirendra AIR 1944 Pat 261: 23 Pat 115) There was no agreement between the parties that the family dwelling house may be allotted to one or more of them. Although, it was urged before us that in the instant case the dwelling could have been conveniently partitioned among all the co-sharers and the commissioner was bound to divide the dwelling house among the parties in such a way that each party may get a compact block consisting of certain rooms with appurtenances thereto, no such case appears to have made out before the trial Court. Moreover, it would appear from the sketch map submitted by the defendants that they want separate allotments which cannot be conveniently made as the plaintiff did not have cordial relationship with the defendant and allotment imposed by the defendants are likely to give rise to future litigations between the parties. Moreover in a partition suit, it is not uncommon that one set of defendants are treated as one group and their 13 inter se arrangements are being worked out without jeopardising the interest of the plaintiff.
The Commissioner has justified the allotment of common passage to be used by the Defendants no.1 & 2 jointly as it turns out that the defendants have made unauthorized construction in their existing common passage with a view to curtail the right of the plaintiff and to create an impediment and complication in the enjoyment of the property by the plaintiff allotted by the commissioner. Moreover, the defendants have made an opening through the northern side a 12' gate after submission of the Commissioner's report with a view to create further impediment and to frustrate the report filed by the Commissioner prepared after taking into consideration all the relevant factors.
Learned Counsel for the appellants has relied upon the Division Bench judgment of our Court in Anjali Pal Vs. Parul Pal & Anr. reported in (2005) 4 CHN 528 in support of the submission that the Commissioner did not disclose the basis of valuation of certain structure and there is no detailed description of the building. We have already noticed earlier that the Commission was prevented by the defendants to inspect the portion under their occupation. This conduct goes to show the defendants did not want the correct state of affairs to be revealed during such inspection. In Anjali Pal (supra), there was a definite finding that the learned Commissioner has assessed valuation of the building without any detailed description and even the area of the said house. However, this is not the case here. The report shows that the properties were identified and inspected by the 14 Commissioner. Common passage was open on the western side at the time of Commission. The Commissioner was not allowed to inspect first floor of the building allotted to the defendant no.2, which admittedly is in possession of the defendants. The defendant did not allow the commissioner to enter into the house at the time of commission. It is also on record that the appellants did not file any document regarding valuation of the suit property and the learned commissioner relied upon the documents submitted by the plaintiff. The report of the Commissioner however suggests that the defendants mentioned certain figures and the learned commissioner considered the documents and the valuation suggested by the parties and followed the middle path and made average of the respective valuation suggested by the parties in order to fix the valuation of the suit property. It benefits both the parties. It is clear from the report of the commissioner that the western portion along with structure was allotted to the defendant no.1. The eastern-most portion being the vacant land with bath room and the electric meter room has been allotted to the plaintiff and the middle portion along with a very damaged dilapidated structure has been allotted to the defendant no.2. It appears to us that the learned commissioner has measured the suit property properly and allotted defendant nos. 1 and 2 with one side and the plaintiff has been allotted the vacant portion less than the share without any structure following the cardinal principle of allotment that the parties in possession should not ordinarily be dispossessed and/or disturbed. The distribution appears to be fair and equitable. 15
However considering the fact that the defendant no.2 would be required to make extensive repair to the dilapidated structure allotted with middle portion of such property we relieve the defendant no.2 from making any payment to the plaintiff. The order under appeal is varied to that extent. We affirm the order under challenge with the aforesaid modification. The final decree stands modified. The department shall draw up the final decree as expeditiously as possible.
The appeal is allowed in part.
However there shall be no order as to costs.
Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on an usual undertaking.
(Soumen Sen, J.) I agree (Ravi Krishan Kapur, J.)