Calcutta High Court (Appellete Side)
Sri Kalipada Poirya & Ors vs Sri. Banamali Samanta & Ors on 20 February, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CO No. 3006 of 2016
Sri Kalipada Poirya & Ors.
-Versus-
Sri. Banamali Samanta & Ors.
For the Petitioners: Mr. Ramkrishna Roy.
For the Defendant No.1 and 2: Mr. Mansoor Alam
Heard on: February 13, 2019.
Judgment on: February 20, 2019.
BIBEK CHAUDHURI, J. : -
1.One Satish Chandra Poirya, since deceased was the original owner of a piece and parcel of land measuring about 20 decimals in plot No.284 appertaining to khatian No.78 of mouja Bhagwanpur within P.S Debra (hereafter the suit property). Nature of the suit property has been recorded as Kala/bastu in the L.R Record of Rights. After the death of Satish Chandra, the suit property was inherited by his four sons, namely, Sreepati Charan Poirya, Bhibhuti Charan, Pashupati and Bijoy Krishna in equal share. While the abovenamed co-sharers had been possessing the suit property jointly in respect of their undivided share, they decided to effect partition of the suit property along with other joint property and by virtue of a registered deed of partition dated 19th August, 1943, the suit was partitioned amongst the abovenamed co-sharers. It is, however, 2 contended that in spite of such partition, the suit property was not demarcated by metes and bounds between the co-sharers. The plaintiffs/petitioners and proforma defendants/opposite parties have been possessing the suit property jointly as per their sharers. It alleged by the plaintiffs/petitioners that the proforma defendants/opposite parties surreptitiously transferred their undivided 1/4th share in the suit property by executing a registered deed of sale in favour of principal defendants/opposite parties No.1 and 2. After purchasing the opposite parties took genuine attempts to raise construction over the suit property which prompted the petitioners to institute Title Suit No.172 of 2014 in the 3rd Court of the Civil Judge (Junior Division), Paschim Medinipur.
2. In the said suit, the petitioners filed an application under order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (hereafter CPC) for temporary injunction against opposite parties No.1 and 2 restraining them from raising any construction over the suit property till the disposal of the suit.
3. By an order dated 10th November, 2014, the learned trial judge rejected petitioners' prayer for temporary injunction. The said order dated 10th November, 2014 was assailed by the petitioners by preferring Misc Appeal No.110 of 2014 which was also dismissed by judgment and order dated 22nd June, 2016. This order is impugned in the instant revision under Article 227 of the Constitution at the instance of the plaintiffs/petitioners.
4. The opposite parties No.1 and 2 have filed affidavit in opposition against the said revision wherein and whereunder they have specifically contended that the suit property was effectively partitioned amongst the co-sharers by a registered deed of partition and they used to possess 05 decimal of demarcated land each separately as per the deed of partition. One of the co-sharers, namely Bibhuti Poriya sold out his 05 decimal of land in favour 3 of opposite party No.2 Subrata Samanta and his brother Debabrata Samanta by a registered deed of sale dated 9th August, 2002. Similarly, one Mohan Kumar Poriya, son of Sripati Charan transferred 05 decimal of land by another deed of sale executed and registered on 7th June, 2005 in favour of opposite party No.1. After purchase, the opposite parties mutated their names in L.R Record of Rights. They obtained building plan from the competent authority and raised structure on their well demarcated portion of land being part of the suit property. The suit property was never a joint undivided property of the petitioners and the vendors of the opposite parties.
5. The petitioners, in tune, filed an affidavit in reply stating, inter alia, that the deed executed by and between the co-sharers on 19th August, 1943 was not a deed of partition in as much as the respective sharers of the co- sharers were not demarcated by metes and bounds by virtue of the said deed. It only declared the share of the parties. The plaintiffs and proforma defendants have been possessing the suit property jointly as per their undivided share. The opposite parties cannot interfere with the possession of the petitioners by virtue of their purchase of undivided share in accordance with the provision of section 44 of the Transfer of Property Act. The opposite parties further cannot claim partition of the suit property on the ground of their names being recorded in the L.R Record of Rights.
6. Mr. Ramkrishna Roy, learned Advocate for the petitioners submits that the opposite parties No.1 and 2 are undisputedly stranger purchasers. The suit property is undivided joint family property of the petitioners and proforma opposite parties. The said property has been partitioned amongst the co-sharers by metes and bounds. Therefore the opposite parties being stranger purchasers cannot interfere with the possession of the petitioners over the joint family property. In support of his contention, Mr. Roy refers 4 to a report of this Court in the Case of Shyamali Halder vs. Shibnath Banerjee reported in 2012 (5) CHN (Cal) 415.
7. Reliance has also been placed by Mr. Roy on a Division Bench decision of this Court in the case of Shib Nath Paul vs. Jaharlal Paul and Others reported in AIR 1982 Cal 143. Paragraphs 14 and 17 are relevant for the purpose of proper adjudication of the instant revision and are quoted below:
"14. There is no dispute that there is no bar in a transferring his share in a property belonging to an undivided family. S. 44 of the T.P Act itself proceeds on such basis and recognizes such right of transfer by a co-sharer.
17. Section 44 of the T. P. Act has two limbs. Under the first limb the purchaser by the purchase acquires, inter alia, the right to joint possession of the property along with the other co-sharers. Under the second limb the section does not entitle him to joint possession. Acquisition of a right to joint possession and (giving effect to such right are distinct questions. A purchaser is entitled to possession of the property purchased from his vendor according to the nature of such property. If it is in the possession of tenants by letters of attornment and if it is in the possession of the vendor by actual physical possession. The second limb provides "nothing in this section shall be deemed to entitle him (transferee) to joint possession or other common or part enjoyment of the house". Apart from the tenanted portion of premises No. 203/4C. Eidhan Sarani the rest of the said premises is in the possession of Jahar and the purchaser Monika Ghose is, therefore, entitled thereto from Jahar and thus she would get joint possession or common or part enjoyment thereof. In that view of the matter prima facie it appears, that the contention of Mr. Jayanta Mitter that an injunction against Jahar would be sufficient is not wholly without any substance. There are arguable points to be decided in the appeal."
8. It is also urged by Mr. Roy that mutation of names of the opposite parties No.1 and 2 in L.R Record of Rights is nothing but the statement of rights of each person and, therefore, has nothing to do with the reparation or 5 partition of a plot of land. The suit property being undivided and unpartitioned, the opposite parties cannot interfere with the possession of the plaintiffs. On this point, learned Counsel for the petitioners refers to a decision of the coordinate bench of this Court in the case of Md. Selamuddin Mia (Minor) vs. Dinesh Chandra Karmakar reported in 2016 (3) CHN (Cal) 146.
9. Md. Mansoor Alam, learned Advocate for the opposite parties, on the other hand, submits that the suit property was partitioned by and between the co-sharers by a registered deed of partition dated 19th August, 1943. Opposite party No.2 and his brother purchased 05 decimal of land from one of the co-sharers, namely, Bibhuti Poiyra in 2000 and opposite party No.1 purchased 05 decimal of land from the heir and successor of another co-sharer, namely, Sripati Charan, since deceased. The opposite parties did not purchase undivided share in the suit property. After purchase, they have mutated their names in L.R Record of Rights. The nature of the suit property was recorded as 'Kala'. On their prayer under Section 4C of the West Bengal Land Reforms Act, conversion of the nature of land was effected to 'Bastu' with effect from 6th June, 2014. Opposite party No.1 obtained permission for construction of a dwelling house on his purchased land from local panchyat on 26th June, 2014. Construction of the house was completed on 30th June, 2015.
10. Thus, according to the learned Counsel for the opposite parties, they are in possession of well demarcated shares of Bibhuti Poiyra and Sripati Charan Poiyra since the dates of their respective purchase. The joint property was partitioned by a registered deed amongst the co-sharers way back in 1943. Therefore, the provision of Section 44 of the Transfer of Property Act has no manner of application in the instant case. The rights of possession of the opposite parties, being lawful owners of the suit property cannot be curtailed by an order of temporary injunction.
611. I have heard learned Advocates for the parties, perused the materials on record and the impugned order.
12. Section 44 of the Transfer of Property Act reads such:-
"44. Transfer By One Co-owner - where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the tranferor's right to joint possession or other common or part enjoyment of the property, and the enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
13. Careful reading of Section 44 of the Transfer of Property Act suggests that the section deals with the right and liabilities of a transferee who acquires title over immovable property owned jointly by the co-owners by virtue of transfer by one of such co-owners. The first part of Section 44 states that a person who accepts transfer of immovable property from another, steps into the shoes of his transferor, and is clothed with all the rights and becomes subject to all the liabilities of his transferor. Thus, he becomes as much a co-owner in respect of the joint immovable property along with other co-owners in same terms and conditions which was enjoyed by his transferor. He is entitled to joint ownership and joint possession of the immovable property. Possession of a transferee in the joint property is to be treated as joint along with other co-sharers.
14. Second part of Section 44 creates an exception to the rule provided in the first part. Where, however, a share in a dwelling house belonging to an undivided family is transferred to a stranger, the transferee cannot claim 7 joint possession or any common part or enjoyment of the house. He can enforce his right over the property by a suit for partition. In such a case, a co-sharer can pray for preemption of the property that was transferred in favour of stranger purchaser under Section 4 of the Partition Act.
15. In the instant case, admittedly the opposite parties purchased a portion of the suit property from two of the co-sharers in the year 2000 and 2005 respectively.
16. Secondly, it is not disputed that the suit property belonged to one Satish Chandra Poirya and after his death his four sons inherited the suit property in equal share.
17. Thirdly, it is an admitted position that the suit property was partitioned amongst the co-sharers as per their shares by a registered deed of partition dated 19th August, 1943.
The question as to whether the suit property was demarcated by metes and bounds as per the said deed of partition or the said deed is in the nature of declaration of shares of the co-owners without effecting partition by metes and bounds, is a question to be decided at the time of final hearing of the suit on the basis of evidence adduced by the parties.
18. Fourthly, the opposite parties mutated their names in the Record of Rights, converted the nature of land from 'Kala' to 'bastu' by making an application under Section 4C of the West Bengal Land Reforms Act.
19. Fifthly, they obtained building plan for construction of a house over their purchased land.
20. Sixthly, construction has already been completed in the year 2016.
821. Under such admitted factual position, it is to be considered by this court as to whether the learned Additional District Judge, 7th Court, Paschim Medinipur was justified in dismissing Misc Appeal No.110 of 2014 by confirming order dated 10th November, 2014 passed by the learned Civil Judge (Junior Division) 3rd Court, Paschim Medinipur.
22. In Zenit Mataplast Pvt. Ltd vs. State of Maharashtra and others, reported in (2009) 10 SCC 388, the Supreme Court was pleased to observe that grant of temporary injunction is governed by three basic principles, i.e, prima facie case; balance of convenience; and irreparable loss, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. The decisions cited by Mr. Roy, learned Advocate for the petitioners have dealt with the question as to the rights and liabilities of a transferee in whose favour transfer of a share of undivided family dwelling house was made. In other words, in all the aforesaid reported decisions, cited by the learned Advocate for the petitioners, the effect of second part of Section 44 of the Transfer of Property Act was considered. The facts of the aforesaid reported decisions are clearly distinguishable from the facts of this case. In the instant case, the opposite parties purchased land from two of the co-sharers. Therefore, the opposite parties can claim possession of the suit property in accordance with the provision contained in section 44 or the Transfer of Property Act. Prima facie, it is found that the suit property was divided amongst the co-sharers by a registered deed way back in 1943. Even assuming that the suit property was not partitioned by metes and bounds amongst the co-sharers, the opposite parties being the transferees stepped into the shoes of their vendors and they assume the character of joint owners along with the petitioners. As joint owners, their possession over the suit property cannot be denied. Therefore, the learned courts below did not commit any illegality or material irregularity in rejecting the prayer for 9 temporary injunction made by the petitioners under Order 39 Rule 1 and 2 read with Section 151 of the CPC.
23. For the reasons recorded above, I am of the considered view that the instant revision is devoid of any merit and the same is liable to be dismissed.
24. Accordingly the instant revision is dismissed on contest without cost.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)