Calcutta High Court
Sri Premendra Kr. Mitra vs Amarendra Kr. Mitra on 27 June, 2003
Equivalent citations: (2003)3CALLT369(HC), 2005(4)CHN245
JUDGMENT A.K. Mitra, J.
1. This second appeal has been preferred challenging the judgment and decree dated 10.9.1997 passed by the learned Additional District Judge, 5th Court at Alipore in Title Appeal No. 11/1995 affirming the judgment and decree dated August 10, 1994 passed by the learned Assistant District Judge, Sealdah in Title Suit No. 76/93.
2. The plaintiff/respondent herein filed a suit for partition valued at Rs. 60,000/-. The case as has been made out by the plaintiff is, inter alia, as follows:
3. By a registered deed of conveyance dated 10.7.1979 the plaintiff and the defendant jointly purchased a piece and parcel of land measuring more or less three cottahs being portion of the then premises No. 2/2A Dr. Panchanan Mitra Lane, P.S. Beliaghata. The plaintiff and the defendant jointly purchased the property and developed and mutated their names in the Calcutta Municipal Corporation. After mutation the said land was renumbered as premises No. 2/2N Dr. Panchanan Mitra Lane being separated from the original premises No. 2/2A, Dr. Panchanan Mitra Lane. After purchase and after mutation both the plaintiff and the defendant jointly got a plan sanctioned by the Calcutta Municipal Corporation and constructed one storeyed building consisting of two flats distinctively divided by the staircase in the middle. It has also been stated in the plaint that the contribution of the fund towards the cost of construction was equally made. The construction was made under the supervision of the defendant who was living at Calcutta near by the said premises. The plaintiff being an employee of Durgapur Projects Ltd. had been residing at Durgapur at the relevant time when the construction of ground floor was in progress. The plaintiff contributed his share of cost to the defendant and he had occasionally visited the said premises when he used to come to Calcutta. The original purchase deed, sanctioned plan and tax receipt have been lying with the defendant as he had been looking after the property. The defendant after completion of the ground floor completed the front portion flat of the said building and the plaintiff was given back portion flat of the ground floor. The plaintiff had to accept the special arrangement as the defendant was in advantageous position having full control over the situation.
4. In 1987 the plaintiff shifted his family to the back portion of the ground floor flat of the suit premises and for better accommodation he started construction of the first floor flat on the portion occupied by him with his own fund exclusively. He completed the first floor flat in 1989 and occupied the same since them.
5. After the retirement from service in February 1990 the plaintiff came to Calcutta to live permanently with his family in the suit premises and he started construction of the second floor flat on the portion of the suit premises completed by him with his own money which he got out of his retiral benefits. The plaintiff when started construction of the second floor on his portion the defendant motivatedly and with mala fide intention lodged a complain with the Calcutta Municipal Corporation and caused stoppage of construction work by the Corporation. The plaintiff then had to arrange for duplicate building plan and got the same renewed to enable him to proceed with the construction of the second floor but could not complete the same.
6. By amicable arrangement the plaintiff has been occupying the back portion of the said premises No. 2/2N Dr. Panchanan Mitra Lane consisting of three flats each on ground, first and second floor of which first and second floor constructed by his own money exclusively and the ground being constructed along with the other flat occupied by the defendant with joint fund. The defendant has been occupying front portion of the said premises consisting of two flats of which the first floor flat which is still incomplete was constructed by his own money exclusively and the ground floor flat was constructed jointly with other.
7. The entire premises No. 2/2N Dr. Panchanan Mitra Lane consisting of partly three storeyed building as described above is the subject matter of the suit, that is, the suit property.
8. The suit property though occupied by the plaintiff and defendant separated by mutual arrangement was never partitioned by metes and bounds. The defendant by a notice dated 5.2.1991 through his advocate asked the plaintiff to have a partition amicably. The plaintiff in his reply dated 15.2.1991 readily agreed to have a partition amicably and asked the defendant to appoint competent person to effect partition. But the defendant did not act accordingly and he instead of having the property partitioned started creating trouble to the peaceful enjoyment of the plaintiff in respect of his portion of the suit property. Subsequently through a notice dated 23.3.1999 through his learned advocate the plaintiff again requested the defendant to take step for amicable partition by setting the terms mutually. According to the plaintiff, the defendant sent a reply dated 8.4.1993 through his learned advocate and made certain allegations against the plaintiff which according to the plaintiff were not correct but he did not say anything about the terms of amicable partition. The plaintiff alleged that finding no alternative, he had to send a letter dated 21.4.1993 through his learned advocate and intimated the defendant that he has been compelled to file the suit for partition.
9. According to the plaintiff he is entitled to 1.1/2 share of the land and the ground floor of the suit premises and the first and second floor of the back portion of the suit premises exclusively belong to him that is the plaintiff. The other half of the land and the ground floor flat is to be allotted to the defendant and the first floor incomplete flat on the portion of the said building belong to the defendant. The plaintiff claimed that he is entitled to owelty money as he has been in occupation of the inferior portion of the suit property. The plaintiff prayed for preliminary decree declaring the plaintiff's share in the suit property and also for final decree for partition in terms of preliminary decree.
10. The defendant contested the suit by filing a written statement. The defence taken by the defendant in his written statement is, inter alia, as follows:
11. The suit is not maintainable, misleading, speculative and harassing. The suit is barred under the principles of waiver, estoppel and acquiescence.
12. According to the defendants, after the purchase and mutation of the land both the plaintiff and the defendant had Jointly obtained complete plan sanctioned by the Corporation of Calcutta and they constructed one storeyed building thereon consisting of two flats contributing jointly towards the cost of such construction. The defendant though admitted that the plaintiff is an employee of the Durgapur Project Ltd., he denied that he has been looking after the property or the defendant had full control over the situation or the plaintiff was given a part or portion of the flat on the ground floor or the plaintiff had to accept under duress or for any other reason as alleged. On the contrary after construction of the said building it was mutually agreed and/or arranged between the parties that the defendant would occupy the front portion of the suit premises and the plaintiff would occupy the back portion of the suit premises and complete the account of the entire construction and it would be prepared in duplicate and one copy thereof would be made over to the plaintiff. After proper consideration of the accounts the same was finally accepted by the parties and it was mutually agreed or arranged between the parties as to the mode of occupancy of the suit premises.
13. The defendant denied that the plaintiff started construction on the first floor situated at the back portion of the suit premises out of his own fund exclusively. The defendant further stated that as the existing accommodation on the ground floor was found to be inadequate both the parties agreed to have the first floor of the suit premises constructed jointly and for the said purpose this defendant contributed his part to the plaintiff. It was further agreed that after completion of the said construction of the said first floor the plaintiff would continue to enjoy the back portion of the suit premises and the defendant would enjoy the front portion of the first and second floor flat. It was also stated by the defendant that the plaintiff though accepted the contribution made on behalf of the defendant and completed the first floor flat in 1989 the said flat since then is being occupied by the plaintiff without allowing the defendant any portion of the said flat and in gross violation of the terms of agreement without furnishing any account towards contribution made by the defendant for the purpose.
14. The defendant also stated that the plaintiff started construction of the second floor on the back portion of the suit premises without the knowledge and consent of the defendant after the expiry of the validity period of the sanctioned building plan for the said construction and in the circumstances the work of construction was rightly stopped by the Calcutta Municipal Corporation inasmuch as there was no valid sanction of the building plan. After the said plan is renewed by the plaintiff, the plaintiff was at liberty to make construction on second floor provided he is agreeable to hand over the allotment of sufficient accommodation to the defendant. The defendant further stated that the defendant handed over substantial sum to the plaintiff for making further construction on the first floor of the front portion of the premises which were to be occupied by the defendant. The plaintiff has wrongfully and illegally kept the said construction incomplete and also failed and neglected to furnish with the accounts to the defendant. The defendant has already contributed the necessary sum for construction of the first floor on the portion of the suit premises which were agreed to be allotted to the defendant. Thus the defendant stated further that he is presently unable to complete the construction of the front portion of the first floor out of his own fund.
15. The defendant denied that the first and second floor of the suit premises have been constructed by the plaintiff out of his own fund exclusively or that the ground floor construction along with the other flat occupied by the defendant was made with joint fund as alleged. The defendant stated further that the entire construction upto the first floor of the suit premises was made out of the joint contribution and the plaintiff wrongfully and illegally utilised the said joint fund for completion of his first floor flat and making construction of a portion of the second floor and the back portion of the suit premises and purposefully kept the front portion flat which was agreed to be allowed to the defendant incomplete although the defendant paid full sum.
16. The defendant also stated that it was mutually agreed upon between the parties that the front portion of the suit premises would be allowed to the defendant and the back portion of the suit premises would be allotted to the plaintiff and the said agreement is still subsisting. The defendant also stated that in furtherance of the said agreement the parties to the instant suit are occupying portion of the said premises exclusively. The defendant denied that he has created any trouble to the alleged peaceful enjoyment of the plaintiff in respect of his portion and on the contrary the defendant has stated that the plaintiff has been creating trouble to his peaceful enjoyment in respect of the portion in question and the plaintiff has also failed to render proper account of the entire sum which were duly contributed by the defendant to the plaintiff for construction and the instant suit is instituted for utilisation of the contribution made by the defendant for his own gain and benefit.
17. The defendant denied that the ground floor of the suit premises along with the first and second floor on the back portion of the suit premises belongs exclusively to the plaintiff or that the defendant is entitled only to the ground floor and the first floor in incomplete manner and/or that the plaintiff is entitled to any owelty money or that he has been occupying in part or portion of the suit property as alleged. The defendant further stated that he had made equal contribution towards the construction of the said building up to the first floor level for which the plaintiff has failed to render any account and if the proper account is taken the said contribution sum will be refundable to the defendant, even after giving the cost that may be required for completion of the said incomplete first floor construction of the suit premises. The defendant stated that the suit property has not been properly described and the suit is barred under the provisions of Specific Relief Act. The defendant prayed for direction upon the plaintiff to render proper accounts in so far as the construction of the suit premises and also prayed for dismissal of the suit with costs.
18. On the above pleadings the learned trial Judge framed 4 issues which are as follows;--
(1) Is the suit maintainable in its present form?
(2) Has the plaintiff 8 (eight) annas share in the suit property?
(3) Is the plaintiff entitled to get the decree as prayed for?
(4) To what other relief or reliefs the plaintiff is entitled?
On these four issues the suit was decided and the learned trial Judge decreed the suit in preliminary form on contest. The learned trial Judge in the ordering portion observed "plaintiffs' title to the disputed property to the extent of share is declared. Parties are given two months time to evict amicable partition amongst themselves, failing which a partition Commissioner shall be appointed upon the application of other party and thereafter a final decree will be passed".
19. Challenging the said judgment and decree passed by the learned trial Judge the defendant Premendra Kr. Mitra preferred appeal being Title Appeal No. 11/95.
20. The learned Appellate Court below dismissed the appeal on contest and passed the following order:--
"That the Title Appeal No. 11/95 be and the same is dismissed on contest with cost. The judgment and decree passed by the learned Assistant District Judge, Sealdah is affirmed. The amendment petition filed by the defendant/appellant for amendment of the written statement is rejected on contest without cost."
21. Hence, challenging the judgment and decree passed by the learned Appellate Court below affirming the Judgment and decree passed by the learned trial Judge this second appeal has been preferred.
22. Now before hearing the appeal in view of the provisions of Section 100 of the Code of Civil Procedure formulation of substantial question or questions of law is necessary. It appears from the records that at the time of hearing of this appeal under Order 41 Rule 11 of the Code of Civil Procedure the Hon'ble Division Bench of this Court on 10.12.1988 formulated one question as substantial question of law which is ground No. XV of the Memorandum of Appeal which is as follows:
"For that even assuming, though not admitting, that the plaintiff has contributed the entire cost of construction for the first floor and second floor from his own erroneous, the house raised on the land belonging to the two brothers would be a joint property inasmuch as the plaintiffs' act of mixing up the fruits of his self-acquisition with joint property would bring out a blending of the same."
23. After considering the averments made in the plaint, the written statement, the amendment application as well as the evidence on record I new that three other substantial questions of law are to be decided in this appeal which are as follows:
(1) Whether the application for amendment assumingly taking a contrary plea should be rejected on the ground that a new case has been made out in the amendment application;
(2) Whether the judgment and decree passed by the Appellate Court below is perverse or not;
(3) Whether in a suit for partition without making the preliminary decree the Court should define or declare the exact share of the parties to the suit.
24. The learned counsel for the appellant challenging the judgment and decree passed by the Appellate Court below affirming the trial Court's judgment and decree submits that both the Court below failed to appreciate that though the land was purchased jointly by the two brothers the appellant and the defendant but after the construction being made when money was invented both by the plaintiff and the defendant the trial Court should have declared and/or decided the exact share and not the share in the ratio of the purchase deed in respect of the land. The learned counsel also submitted that the Appellate Court below should have decided each issue independently without acting mechanically and affirming the judgment and decree passed by the learned trial Court. The learned counsel also submits that in this case the Appellate Court did not go into the merit of the partition but only decided the merit of the amendment application and affirmed the judgment and decree passed by the learned trial Judge. The learned counsel further submit that in an undivided property in each and every inch, each and every co-sharer has right, title and interest and any co-sharer in exclusive possession of a part of joint land cannot raise construction and if he raises a construction then it will be a joint property. In this context the learned counsel relies on the observation made in a decision (Om Prakash and Ors. v. Chhajuram) which is as follows:--
"Thus it is quite obvious that a co-sharer who is in exclusive possession cannot be permitted to raise construction on the land in his possession, as every other co-sharer is also a joint owner of every inch of the entire joint holding till the same is regularly partitioned by metes and bounds. I find support on this point from the single Bench Authority of this Court in MST Parsini @ Mano v. Mohan Singh, 1982 PLJ 282 wherein it was held that a co-sharer in an exclusive possession of a part of joint land cannot raise construction on the land as every co-sharer is a joint owner of every inch of the whole land.
To the same effect is the latest single Bench Authority of this Court in Daulat Ram v. Dalit Singh, 1989(1) RLR 523"
25. The learned counsel for the appellant in this regard also relied on the decision (Jacob Put. Ltd. v. Thomas Jacob) in which when deciding an injunction matter the Hon'ble Court observed that the legal position is well settled that one co-owner has no right to place any construction upon what belongs to all without consent of the other co-owners. The learned counsel also observed that if in a joint family property any of the cosharer makes investment in the matter of construction of the building that cannot be excluded from hotchpotch. In this regard the learned counsel relies on a judgment reported in AIR 1991 Bombay page 10 (Dr. Nilkanth Krishnarao Apte v. Dr. Ramchandra Krishnarao Apte and Anr.): "A careful examination of Ex. P1 reveals the following to be the vital features thereof:--
1. The document is described to be a deed of family settlement.
2. N.K. Apte between 1953 to 1956 had spent for the construction on the first floor and incurred further expenses from time to time on renovation, and additional construction inclusive of a room on the terrace and garage.
3. Admission by Krishnabai and R.K. Apte that N.K. Apte is owner of upper floors and garage by virtue of is having got constructed the same.
4. Admission by Krishnabai and R.K. Apte that Saroj Apte has become owner of upper floors because of an oral gift in her favour by N.K. Apte and that when has a right to let it out to whom she wants.
The other two writings are of 5.3.1958 and 15.7.1960. At the best these are admissions by Krishnabai and will not bind R.K. Apte. What can be deducted therefrom is the proved, if not admitted fact that the upper floors were due to the expense and efforts of N.K. Apte alone. This was acknowledging a past event, but the acknowledgment of the sole ownership of N.K. Apte and of Saroj Apte as his donee was not a recognition of a past event. That was a recognition made for the first time. The occasion was the impending move of N.K. Apte to shift his residence from Chembur to Warden Road. Describing the document as a family arrangement was a misnomer. In reality it was an acknowledgment that N.K. Apte was the sole owner of the upper floors and that his mother and brother would not question the leasing out thereof by Saroj Apte. Next, the document further recited that in lieu of N.K. Apte surrendering one room on the ground floor to R.K. Apte, he was exonerated from the liability to pay Rs. 50/- per month to his mother. This clause perhaps would partake of the nature of a family arrangement. But the clauses recording the ownership of N.K. Apte and disclaiming the rights of the mother and R.K. Apte relate to the creation and extinction of a right. Ex. P1 to that extent is not a record of a past transaction. The document was prepared for use as a document of title. To paraphrase the words of the decision in Tek Bahadur v. Debt Singh, , the purpose behind Ex. P1 was to have document of title declaring for the future what rights and what properties, the parties did or did not possess. Ex. P1 required registration and not being registered does not strip R.K. Apte of the interest that he has in the upper floors which are an accretion enuring to the benefit of both the branches. Counsel for N.K. Apte relies on Kashinath Das v. Pravash Chandra, in support of the contention that R.K. Apte having acquiesced in the construction of the upper floors is debarred from questioning his client's exclusive right thereto. The decision relied upon seems to support the stand taken. But, and I say so with utmost respect to the Judges, no reasons have been given in support of the view. The better view seems to be that taken by Wadsworth, J. in the case . There, an addition with the separate funds of a coparcener to the ancestral house was treated as an accretion enuring to the benefit of the family. The reason given was that the ancestral house supplied to the addition both its site and its foundation and thus rendered the latter liable for partition. The result is that the upper floors are not excludible from the hotchpotch."
26. The learned counsel also relied on the decision . In the same context the learned counsel relied on a decision reported in AIR 1983 Allahabad page 348 (PatramSingh v. Bahadur Singh) where it has been observed "If the evidence had been appraised from the proper viewpoint, the lower Appellate Court ought to have taken into consideration the facts that the parties were living joint in the year 1941 when the land was purchased and having been purchased in the joint names of the parties, it was for the defendant to establish that the consideration for the purchase of the land was advanced by him entirely from his own resources and self acquired funds with the intention of purchasing the property as separate property and the name of the plaintiff as a co-purchaser was no better than that of a Benamidar. In the absence of any such plea the joint family being there, the joint family lands which yielded some income in some form being there, and the land having been acquired in the joint names of the two brothers by the defendant who was the elder of the two and was presumably the Karta of the family, the land so acquired could only be deemed to be coparcenary property between the brothers. It seems to me that being conscious of this position, the defendant set up the case that the plaintiff's name had been joined as a purchaser at the instance of the mother and on the the assurance that the plaintiff will contribute his share of the price, but he did not do so. Assuming that it was so, the land must be deemed to have been purchased as joint property on the plaintiff's assurance that he would contribute his share of the price. Not keeping the promise to contribute towards the share of the price by the plaintiff will not make the land which was purchased as joint property, the separate property of the defendant on the plaintiffs' failure to contribute his share of the purchase price. At best the defendant could claim recovery of 1/2 of the purchase price of the land from the plaintiff, but on no theory could the land which was purchased as the joint property of the parties become the separate property of the defendant on non-payment of his share of the price by the plaintiff."
27. Lastly, the learned counsel further submitted that the Appellate Court below was wrong in not allowing the Amendment Application which was made before the Appellate Court below. The learned counsel for the appellant further submitted that the judgment and decree passed by the Appellate Court below is perverse inasmuch as the observation contradicted the materials on record that is when the learned Appellate Court below observes that there is no averment in the written statement regarding the expenditure incurred by the defendant the same goes contrary to the pleadings. The learned counsel for the appellant also submits that neither the learned trial Judge nor the Appellate Court below decided or declared the specific share of the parties in and over the constructed property in the preliminary decree. The learned counsel, therefore, submits that the judgment and decree passed by the Appellate Court below affirming the judgment and decree passed by the learned trial Judge should be set aside.
28. The learned counsel for the respondent submits that the defendant in his examination-in-chief has not stated regarding quantum of money alleged to have been paid by him. The learned counsel for the respondent submits that the Exbt. 6 remained uncontroverted and the amendment application is an afterthought. The defendant should have very well stated in the written statement if he had paid the alleged sum actually. The learned counsel also submits that apart from Rs. 21,000/- he did not pay any money and he could not produce any scrap of paper. The learned counsel for the respondent submits that the decision cited by the appellants are not relevant and the learned trial Court as well as the learned Appellate Court below rightly passed the judgment and decree in favour of the plaintiff and rightly granted the decree of partition.
29. In reply the learned counsel for the appellants submits that the learned Appellate Court below did not consider the materials on record and the judgment and decree passed by the Appellate Court below is perverse and proper issues were not framed and the shares as submitted earlier were not declared in specific.
30. Heard, the learned counsel for the respective parties. It is admitted that the land was purchased jointly by two brothers. It is also admitted that in the matter of construction of building over the land both the brothers incurred expenditure. It is, therefore, necessary for the person who claims partition to establish the extent of share he is entitled to and the actual quantum of expenditure incurred by the defendant and on the basis of proper accounts what is the quantum of share of the property he can claim. The first question, therefore, is answered in the manner that when in a joint property some investment is made that investment will also to be taken into account when deciding the extent of share of the parties in a partition suit. The learned Appellate Court below as would appear did not consider the averments made in paragraph 7 of the written statement where it has been stated "This defendant further states that as stated hereinabove, this defendant handed over substantial sum to the plaintiff for making further construction on the first floor of the front portion of the said premises which were to be occupied by the defendant". The learned Appellate Court below failed to observe the particular term "substantial sum for making further construction". In that view, in my opinion, the learned Appellate Court below could not appreciate the settled position of law that in a joint property under joint possession any investment comes within the hotchpotch. In so far as the second question is concerned the Appellate Court below failed to appreciate that amendment application can be allowed even at the appellate stage. The learned Appellate Court below placed reliance in the decisions where it has been observed that if the proposal for amendment of written statement appears to be with mala fide intention, the amendment application should be rejected. The learned Appellate Court below also relied on the decision where it has been observed that amendment introducing entirely different new case and shaking to displace the plaintiff completely from admissions made by the defendant in written statement cannot be made and such an application for amendment should be rejected. The learned Appellate Court below could not properly appreciate the purport and contents of the amendment application where the amendment sought to be made was not at all a new case and it was rather in the nature of clarification of the averment of written statement. In this regard reliance should be placed on a decision (Ishwardas v. State of Madhya Pradesh and Ors.) where it has been observed that "amendment of written statement at appellate stage can be allowed even if it raises a new plea, we are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the Court. There is no legal basis for this assumption. There is no impediment or bar against an Appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court."
31. In my opinion, even if the plea taken in the amendment of the written statement is contrary to what was originally stated in the written statement and if the cause of action is in no manner affected then the amendment of written statement even taking contrary stand can be allowed.
32. The learned Appellate Court below did not consider the evidence on record and/or averment made in the written statement and did not at all go into the main issue that is merit of partition and mechanically affirmed the judgment and decree passed by the trial Court. In my opinion the judgment and decree passed by the learned Appellate Court below is perverse. The same did not declare or define specific share of the parties in the suit property and wrongly rejected the amendment application filed by the defendant for amendment of written statement at the appellate stage. The judgment and decree passed by the Appellate Court below is, therefore, set aside. The application for amendment filed by the defendant before the Appellate Court below is allowed. The Appellate Court below is directed to take evidence on the basis of the amended written statement and to decide the shares of the respective parties to the suit for partition in specific and in defined form and then to pass a preliminary decree. The matter is, therefore, sent on remand before the Appellate Court below by making the observations in the manner above and setting aside the judgment and decree of the Appellate Court below with a direction to hear the Title Appeal No. 11/1995 afresh on the basis of observations made above. Parties are to bear their own costs respectively.
Let the L.C.R, be sent down to the Appellate Court below forthwith-Urgent xerox certified copies, if applied for, will be given expeditiously, as prayed for, by the learned counsel for the parties.
S.B.