Calcutta High Court (Appellete Side)
Bilasini Bauri vs Bipadtaran Saha on 3 May, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Asha Arora
F.M.A.T. 963 of 2016
(CAN 9430 of 2016)
(CAN 2131 of 2017)
(CAN 2130 of 2017)
Bilasini Bauri
-Versus-
Bipadtaran Saha
For the Defendant/ : Mr. Debojyoti Basu,
Appellant Mr. Lalit Mondal.
For the Plaintiff/ : Mr. Partha Pratim Roy.
Respondent
Heard on: 3rd May, 2017.
Judgement on: 3rd May, 2017.
Jyotirmay Bhattacharya, J. :-
Re: CAN 2131 of 2017
The sole appellant viz. Smt. Bilasini Bauri died intestate on 14th January, 2017 leaving behind her surviving her sons and daughters as mentioned in paragraph 2 of this application.
The heirs and legal representatives of the said deceased appellant are major and sui juris.
The application for substitution was filed within the prescribed period of limitation.
Hence, the application for substitution is allowed. Let the legal representatives of the sole appellant as mentioned in paragraph 2 of this application be substituted in place and stead of the sole appellant.
The concerned department is directed to amend the cause title of the memorandum of appeal accordingly.
Let the vakalatnama which was filed by the substituted appellants along with application for substitution, be treated as a vakalatnama filed by them in the appeal.
Re: CAN 2130 of 2017 The instant appeal is a time barred appeal. There was 62 days delay in filing this appeal. Reason for the delay has been sufficiently explained by the appellant in the instant application for condonation of delay.
As a matter of fact, the appellant initially challenged the impugned order by filing a revisional application. It is only when the said revisional application was held to be not maintainable, the instant appeal was filed.
In this process, some delay was caused.
Since the reason for the delay has been sufficiently explained by the appellant in this application, we allow the appellant's prayer for condonation of delay. Delay in filing this appeal is condoned.
Let the appeal now be registered.
The application is thus, allowed.
Re: FMAT 963 of 2016 This appeal will be heard.
The lower court records need not be called for.
Since the respondent is represented by Mr. Roy, learned advocate, service of notice of appeal upon the respondent is dispensed with.
The appeal is thus, treated ready as regards service.
Re: CAN 9430 of 2016 After the appeal was admitted for hearing, when we were considering an application for injunction filed by the appellants in this appeal, we were invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this appeal.
We are informed by the learned counsel appearing for the parties that all necessary papers which are required for disposal of this appeal, are annexed to the stay application.
Let us now consider the merit of the instant appeal in the facts of the present case.
By the impugned order, the learned Trial Judge was pleased to pass an interim order directing the parties to maintain status quo as regards possession of the parties in respect of the suit property till the disposal of the suit. Such interim order was passed in a suit for partition filed by the plaintiff/respondent. The defendant/appellant felt aggrieved by the said order.
Hence, the defendant has filed the instant appeal before this Court. Mr. Basu, learned advocate appearing for the appellant submits that the plaintiff has no interest in the suit property. Thus, he contends that the learned Trial Judge ought to have refused to pass any interim order in such a suit for partition filed by the plaintiff where the plaintiff has no share in the suit property.
Let us now consider as to how far such contention of Mr. Basu can be accepted in the facts of the present case.
On perusal of the pleadings of the respective parties, we find that admittedly Shambhu Bauri was the owner of the suit property. He died intestate leaving behind his only son viz. Muktipada who inherited the suit property on the death of his father Shambhu Bauri. Muktipada had two wives namely Gangadevi and Purnimadevi. Sima was the daughter of Muktipada though his first wife namely Gangadevi. Purnamadevi was the second wife of Muktipada. Muktipada had one son and two daughters through his second wife Purnimadevi. They were Mahalaya (son), Moyna (Daughter) and Pratima (Daughter). Gangadevi being the first wife of Muktipada along with her daughter Sima sold and transferred their interest in the suit property in favour of Basudev and Buddhyadev. The heirs of Basudev subsequently sold their interest in the suit property in favour of the defendant. Buddhyadev sold his interest in the suit property to the plaintiff. The defendant herein being a co-shareer of the suit plot filed an application under Section 8 of the West Bengal Land Reforms Act for prempting the sale of the share of Buddhyadev in favour of the plaintiff. The said premption application was allowed on contest in favour of the defendant.
Being aggrieved by the said order allowing premption in favour of the defendant, the plaintiff filed an appeal before the learned First Appellate Court. The plaintiff became unsuccessful in the said appeal. Thus, the order of pre- emption which was passed in favour of the defendant attained its finality. The plaintiff thus lost his interest in the suit property which he acquired though Basudev by way of purchase.
Mahalya being the son of Muktipada through his second wife Purnima died leaving his wife Monika. The said Monikadevi along with the daughters of Purnima namely Moynadevi and Pratimadevi gifted their share in the suit property in favour of the plaintiff by a registered deed of gift dated 10th April, 2015. The instant suit was filed by the plaintiff on the strength of his interest which he acquired in the suit property through the said deed of gift executed by Monikadevo and others on 10th April, 2015. The plaintiff also claimed that Basudev had no interest in the suit property and as such, the defendant did not acquire any interest by way of purchase from the heirs of Basudev.
Even if we accept this part of the contention of the plaintiff that Basudev had no interest in the suit property and the defendant did not acquire any interest by way of purchase through the heirs of Basudev, still then the share of the plaintiff which the defendant was allowed to pre-empt in the pre-emption proceeding remains unaffected. The plaintiff himself admitted the defendant as a co-sharer and joined him as a defendant in the partition suit.
As such, we cannot even come to a prima facie conclusion that the defendant is not a co-sharer in the suit property.
Be that as it may, the plaintiff's claim for partition which is founded on the basis of acquisition of his interest in the suit property by way of gift through Monikadevi and others, cannot be ignored. As such, we are of the prima facie view that the plaintiff has acquired some interest in the suit property by way of deed of gift executed by Monikadevi and others on 10th April, 2015. What will be the shares of the respective parties will be ultimately decided in the suit but presently we hold prima facie that they are co-sharers of each other in the suit property.
Such being the facts of the instance case, we are of the view that the learned Trial Judge did not commit any illegally in passing the impugned order directing the parties to maintain status quo as regards their possession in the suit property until the suit property is partitioned between the co-sharers by metes and bounds.
We, thus, do not find any illegality in the impugned order. The impugned order is thus, approved by this Court. The appeal is, thus, disposed of.
We are informed by the learned counsel appearing for the parties that the suit has already matured for hearing and the parties have already started giving evidence in the suit.
Considering the stage of the trial of the suit, we request the learned Trial Judge to dispose of the suit itself without granting any unnecessary adjournment to any of the parties.
The applications filed in connection with this appeal are also disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately. (Jyotirmay Bhattacharya, J.) (Asha Arora, J.)