Calcutta High Court (Appellete Side)
Prabir Pandit vs Jagabandhu Dey on 7 March, 2022
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Soumen Sen
&
The Hon'ble Justice Ajoy Kumar Mukherjee
SAT 401 of 2019
CAN 1 of 2019 (old CAN 12603 of 2019)
Prabir Pandit
Versus
Jagabandhu Dey
(Through Video Conference)
Order dated : 07th March, 2022
Ajoy Kumar Mukherjee,J.(oral):
1. The report filed by the department shows that the
appellant has received administrative notice. However,
none appears on behalf of the appellant.
2. Feeling aggrieved with the judgment and decree
dated 22nd August , 2019, passed by the learned First
Appellate Court Paschim Medinipur in T.A. 57 /2018
modifying judgment and decree passed by learned
Trial Court on 08.05.2018 in T.S. 20/2011,the
defendant /Appellant wants for admission of the
second Appeal.
3. Plaintiffs case in a nutshell is that suit plot No.
152 covering 11 decimal is the subject matter of the
suit. Out of 11 decimal,6 decimal was purchased
by the father of plaintiff namely Gostha Behari Dey
and 5 decimal purchased by the plaintiff
Jagabandhu Dey and his brother Balaram Dey by
registered deed dated 23rd April, 1979 from one
2
Pulin Behari Maity .Plaintiff Jagabandhu
constructed two storied house covering 5 decimal of
land and father of the plaintiff i.e. Gostha Behari
Dey also constructed two storied house in the
aforesaid purchased portion and both building
stands side by side. Plaintiff has been residing along
with his family members in the building constructed
by him and father also lives in the house built by
him along with other members of his family. In the
Record of Rights 03 decimal of suit property
recorded in the name of plaintiff. Brother of the
plaintiff Balaram Dey has suddenly sold out a
portion of the building, built by plaintiff to the
defendant by a registered sale deed but the
defendant did not get possession of his purchased
portion in the suit house. The defendant
threatening to deposes plaintiff from the suit
property by dint of aforesaid purchase, though he is
a stranger purchaser and he is not entitled to get
possession of the same without partition, in view of
provisions laid down in section 44 of Transfer of
Property Act. Accordingly plaintiff prayed for
declaration of his joint title in the suit property
along with injunction restraining defendant from
taking possession in the suit house.
4. Defendant contested the suit by filing written
statement and denied all material allegations and
defendant's specific case is that after purchase
Balaram Dey and Jagabandhu Dey (plaintiff)
3
constructed paka building on their respective
portion of the plot by an amicable arrangement.
Balaram Dey declared to sale a portion of his house
which is the extended portion of house i.e. 'challa'
and defendant who is a hawker by profession has
purchased the same by a registered sale deed dated
17th February, 2011. Defendant's specific case is
that the property in question was never undivided
dwelling house of Jagabandhu and Balaram and as
such plaintiff is not entitled to get protection under
the provisions of section 44 of the Transfer of
Property Act nor he is entitled to pre-empt under
the provision of Hindu Succession Act. The
defendant is a bona fide purchaser for valuable
consideration. He accordingly prayed for dismissal
of the suit.
5. Learned Trial Court framed as many as ten
issues .Plaintiff in this case deposed as PW1 and he
has also brought three other witnesses and original
registered deed for the year 1979 is marked as
exhibit 1 and record of rights and Dakhila receipt
are marked as exhibit 2 and 3 . Certified copy of
registered sale deed for the year 2011 is marked as
exhibit 5. On the contrary defendant himself
deposed as DW1 and he has also brought two other
witnesses. He has also proved original deed for the
year 2011 which is marked as exhibit E, Khajna
Dakhila and record of rights in respect of his
khatian No. 311/1 are marked exhibit.
4
6. Learned Trial Court after appreciation of both
oral and documentary evidence came to the finding
that from the documents filed by both the sides, it
is clear that suit property is undivided and it was
purchased by plaintiff and his brother Balaram Dey.
It is also not disputed that defendant is a stranger
purchaser in respect of the suit property. Learned
Trial Court has also cited various relevant
judgments and after discussing the same, came to
the conclusion that whenever a stranger purchaser
purchases the property which forms an undivided
dwelling house then the only remedy for such
purchaser is to file a suit for partition. Accordingly
learned trial Court decreed the suit but refused to
grant other prayers including payer for injunction.
7. Being aggrieved by said judgment dated
22.08.2019, plaintiff preferred appeal which came
up for hearing before the learned Additional District
Judge, First Appellate Court, Paschim Medinipur,
Learned First Appellate Court also opined that
admittedly Appellant and his brother Balaram Dey
purchased 5 decimal of land by dint of exhibit 1 and
it is also admitted that Appellant is in possession of
the building standing on the suit property. Learned
Trial Court acknowledging joint title of the Appellant
decreed the suit in part in favour of plaintiff but
curiously learned Trial Court refused to grant
injunction. In this context learned First Appellate
Court also came to the same finding that one
5
stranger purchaser cannot claim possession in the
joint holding and his only remedy is suit for
partition and to ask for allotment of his share in the
property and in this context he further observed
that the principles laid down in AIR 1992 Calcutta
44, 1990 (2) SCC 117, 2017 SCC online Calcutta
11516 and AIR 1952 Calcutta 253 are squarely
applicable to the facts and circumstances of this
case. Accordingly learned First Appellate Court held
that he has no hesitation to held that appellant
being co-sharer in the suit property has every right
to get order of injunction against respondents.
Accordingly learned First Appellate Court modified the judgment and decree passed by the appellate court by declaring the plaintiff being co-sharer in the suit property having joint title with other co- sharers and defendants are restrained by order of permanent injunction from taking possession in the suit property.
8. Admittedly in the present case plaintiff is a co- sharer and defendant is a stranger purchaser. Section 44 of the Transfer of Property Act has been insulated for maintaining domestic peace of members of undivided family, occupying a common dwelling house, from the encroachment of a stranger transferee of the share of one undivided co- owner. Entry of such outsider in the joint family member dwelling house is likely to create unnecessary disturbance not german to the peace 6 tranquility. As the present suit property is an undivided family dwelling house, part of which has been transferred to the defendant, so section 44 of the Act attracts. The only manner in which an outsider can get possession of the property, purchased by him is by filing of suit for separation of his share along with prayer for delivery of possession. It is true that there is no bar for co- sharer to transfer his share in property belonging to undivided family but section 44 of the Transfer of Property Act has two limbs. Under the first limb the purchaser acquires the right to joint possession of the property along with the other co-sharer but the second limb prescribes "where the transferee of a share of a dwelling house belong to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him (transferee) to joint possession or other common or part-enjoyment of the house" .In view of above learned First Appellate Courts modification that, in addition to declaring plaintiff being a co-sharer in the suit property having joint title with other co-sharers but also to restrain the defendant by an order of permanent injunction from taking possession of the suit property, does not call for any interference .No substantial question of law involves in the present case. Therefore, prayer for admission of second appeal stands dismissed.
9. S.A.T. 401 of 2019 is dismissed. Consequently 7 CAN 1 of 2019 (old CAN 12603 of 2019) also stands dismissed.
There will be no order as to costs .
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. Let the copy of the order be send to the Learned Civil Judge (Junior Division), 3rd Court, Paschim Medinipur.
I agree (Soumen Sen, J.) (Ajoy Kumar Mukherjee, J.)