Tripura High Court
Sri Pranabendu Das vs Sri Jyotirmoy Das on 28 January, 2019
Bench: Sanjay Karol, S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
RFA No.05 of 2018
Sri Pranabendu Das,
son of late Jagadananda Das,
resident of Ramnagar Road No.7,
P.O. Ramnagar, P.S. West Agartala,
District - West Tripura
presently residing at 31, Dhakuria Station Road,
Dhakuria, Kolkata-31
-------Appellant(s)
-Vs-
01. Sri Jyotirmoy Das
02. Sri Bijoy Das
03. Sri Nabendu Das,
sons of late Jagadananda Das,
resident of Ramnagar Road No.7,
P.O. Ramnagar, P.S. West Agartala,
District - West Tripura
04. Sri Arabinda Das,
son of late Jagadananda Das,
resident of Spandan Abashan,
E.A-10/1, Baguiati Main Road,
P.O. Baguiati, P.S. Kolkata - 700 059
05. Smt. Dipti Das,
wife of Sri Rupak Bhowmik,
daughter of late Jagadananda Das,
near the house of Krishnadas Bhattacharjee,
Ex-Minister, Old Kalibari Road,
P.O. Agartala, P.S. West Agartala,
District - West Tripura
-------Respondent(s)
For the Appellant(s) : Mr. S. M. Chakraborty, Sr. Adv.
Ms. M. Chakraborty, Advocate Ms. P. Sen, Advocate For the Respondent(s) : Mr. D. C. Roy, Advocate Mr. J. Das, Advocate Mr. N. Majumder, Advocate Date of hearing & delivery : 28.01.2019 of Judgment & Order Whether fit for reporting : NO Page 2 of 7 HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL HON'BLE MR. JUSTICE S. TALAPATRA Judgment and Order (Oral) Heard Mr. S. M. Chakraborty, learned senior counsel assisted by Ms. P. Sen, learned counsel appearing for the appellant as well as Mr. D. C. Roy, Mr. J. Das and Mr. N. Majumder, learned counsel appearing for the respondents.
02. Deceased Jagadananda Das owned and possessed certain properties within the State of Tripura and more specifically at Agartala. The parties to the lis are his legal heirs i.e. five sons and one daughter. On 8th of November, 2006 one of the sons namely, Pranabendu Das filed a suit seeking partition of such properties. The trial court vide judgment dated 10th of November, 2017 passed in Title Suit (P) No.68 of 2006 having titled as Sri Pranabendu Das vs. Sri Jyotirmoy Das and Ors. adjudicated the rights of the parties by passing of preliminary decree in the following terms:
"9. In the result, the suit stands decreed partly on contest without cost.
The suit land as described in schedule A and B are liable to be partitioned in 1/6th equal share each between the parties in exclusion of the land gifted to the defendant No.2 (Bijoy Das) on the strength of gift deed bearing No.1-2707 dated 02.06.1995 (Exbt-A) and also in exclusion of the land transferred to the defendant Nos.1 and 3 (Jyotirmoy Das and Nabendu Das) vide the sale deed bearing No.1-902 dated 20.01.2005 (Exbt-E) and the sale deed bearing No.1-
903 dated 20.01.2005 (Exbt-F). However, the boundaries or specification of the land given in those deeds will have no effect. The revenue records if any prepared on the strength of Exbts. A, E and F will also have no effect. Defendant No.1, Page 3 of 7 2 and 3 being transferee's will be entitled to the share proportionate to the land as transferred by way of gift/sale. To be more specific firstly the land transferred on the strength of Exbts. A, E and F be allotted to the defendant Nos.1, 2 and 3 proportionate to the quantum of land mentioned therein and thereafter remaining pat of the A. and B schedule land shall be divided in 1/6th equal share each. Since the parties have constructed their respective dwelling huts on the A and B schedule land, the possession of the parties may not be disturbed as far as practicable. However, such an order shall not be an embargo in disturbing the possession of the parties while equalizing the value of shares.
Parties to the suit to make partition of both A and B schedule land according to their shares as declared herein- above by metes and bounds within a period of two months. Failing which each party to the suit shall be at liberty to approach this court to have the final decree in accordance with law."
03. During the pendency of the present appeal, so preferred by the plaintiff, this Court on the basis of mutually agreeable arrangement, requested Sri D. K. Biswas, Advocate to make an endeavour of having the matter amicably resolved. During the conciliation, all claims by the parties in respect of the land attracted by the gift deed bearing No.1-2707 dated 02.06.1995, (Exbt.A), the sale deed bearing No.1-902 dated 20.01.2005 (Exbt.E) and the sale deed bearing No.1-903 dated 20.01.2005 (Exbt.F) have been abandoned. The land covered by those deeds (Exbt.A, Exbt.E and Exbt.F) are to be excluded from the land described in the Schedule A and B. For purpose of reference Schedule A and B are reproduced hereunder:
SCHEDULE-A District-West Tripura, Pargana - Agartala, P.S. - West Agartala, Sub-Registry and Sub-division - Sadar, Agartala Sheet No.2, C. S. Khatian No.13455 consisting of Plot No.1227/1228 land measuring 8 Gandas, 2 karas and 17 Dhurs.Page 4 of 7
SCHEDULE-B District-West Tripura, Pargana - Agartala, P.S. - West Agartala, Sub-Registry and Sub-division - Sadar, Agartala Sheet No.2, C. S. Khatian No.13455 consisting of Plot No.1219, 1222, 1223 and 1224, land measuring 2 karas and 9 Dhurs.
The lands of the Schedule-A and B though purchased by 2(two) separate Deeds became a compact land after purchase and is bounded:-
In the North - Sri Dilip Debnath
In the South - Ramnagar Road No.7
In the East - Legal heirs of Sailesh Datta
In the West- Legal heirs of Nani Ghosh
Within this boundary total land measuring 10 Gandas 2 karas 1 Kranta and 6 Dhurs."
Mr. Biswas has restricted the division of plots as amicably resolved to the land in exclusion of the land attracted by those deeds (Exbt.A, E and F).
04. Thankfully with the efforts of conciliation put in by Mr. Biswas, the parties amicably resolved their disputes on the terms reflected in the report of Sri Biswas dated 28th October, 2018. The report, we find is unambiguous, detailing, specifically the plots, the area and the location to be allocated/owned by each one of the parties to the lis. We find it prudent to reproduce the operative portion of the report as under:
"Thus Plot-1 (1150 sft.) will go to Dr. Bijoy Das. Though he gets in his share more than he is due, in the prime part of the compact land. He would not however raise any wall along the eastern boundary to allow the common 6" wide pathway to be used virtually wider by 1.5" beyond the building wall.
Plot-2 (1175 sft.) will be the share of Jyotirmay Das.
Plot-3 (1120 sft), 4(1150 sft) 5(1190 sft) and 6 (1205 sft) will be distributed among other 4 co-sharers.
I have tried various ways to set the plots in equitable position. But nothing better could be conceived than what I Page 5 of 7 have done and clearly demonstrated in the annexed Sketch showing all the distinct plots.
In my discussion with all (except the Plaintiff Sri Pranabendu Das) all other than Dr. Das have agreed to the proposed plotting.
Dr. Bijoy Das occupies the prime part and according to partition norms he is entitled to smaller area than others getting plots behind. But situation is otherwise, he is in occupation of more land than what he would otherwise get. However he would not be inconvenienced in any manner, if his constructed house is allowed to fall in his share.
As far as possible I have tried to allot more land for those in the rear part of the plot. Plot No.3 has been allotted smaller share because the frontal part is made open by proposing to use the plot for common facilities as "common" and open which can be used as space for common water reservoir putting a concrete slab thereon. This will make the plot-3 open to the main road.
The length of the common pathway will be, as follows:
Initial 10 ft. ......... 14 ft.
Next 48 ft. ............ 06 ft.
Last part ............08 ft.
The pathway can be used for taking water connection and setting up under-ground drains for the occupants of the rear plots.
The area in the shares of 6 coparceners will be as follows, and shown in the sketch attached: Plot-1 : (Dr. Bijoy Das) ... 1150 ft. (getting facility of the main road) Plot-2 : (Jyotirmay Das) ... 1175 ft. Plot-3 : ........................... 1120 ft. (getting facility of the main road) Plot-4 : ..................... 1150 ft. Plot-5 : ..................... 1190 ft. Plot-6 : ..................... 1205 ft. Plot for common facility (like post for common Electrical - connection and the underground water tank) ....................................... 230 ft.
Plots 3, 4, 5 and 6 may be allocated by the Hon'ble court to Shri Pranabendu Das, Sri Arabinda Das, Sri Nabendu Das and Smt. Dipti Das assuming some accepted principle of distribution.
I have not tried to get a consensus on the plotting proposed above, as it was inconvenient. But I hope the distribution being sufficiently equitable and, nothing better could be conceived by me, I hope this will be accepted by all the co- sharers.
The above report is placed for consideration of the hon'ble court.
Enclo: computer drawn sketch with measurements Showing Plot 1, 2, 3, 4, 5 and 6 Page 6 of 7 Plot for common facilities Common pathway, space fore u/g. water tank, Drains etc."
We find that the learned conciliator has also drawn a sketch depicting equitable plotting of the area.
05. On 17th of December, 2018, we passed the following order:
"We are of the considered view that perhaps Plot No.3 can be allotted to Sri Nabendu Das, Plot No.4 to Sri Arabinda Das, Plot No.5 to Smt. Dipti Das and Plot No.6 to Sri Pranabendu Das, in terms of the report dated 28.10.2018 that of the learned conciliator.
Let parties respond to the same within one week failing which, it shall be presumed that they have nothing to state."
06. Today all the parties are in agreement that a decree in terms of the report of the learned conciliator (Sri Biswas) as also order dated 17th December, 2018 reproduced supra be passed.
07. We are of the considered view that the settlement arrived at by the parties is legal, in their interest as also in the interest of justice. The settlement, mutual in nature, is also, just and fit.
08. With this amicable settlement, perhaps for all times to come, litigation pertaining to inheritance of the state of deceased Jagadananda Das shall come to an end and his legal heirs, continue to live happily as one time.
09. Under these circumstances, we accept the settlement and modify the judgment and decree dated 10.11.2017 passed by Page 7 of 7 the Civil Judge, Senior Division, Court No.1, West Tripura, Agartala in Title Suit (Partition) No.68 of 2006 titled as Sri Pranabendu Das vs. Sri Jyotirmoy Das and Ors. incorporating the terms of the settlement recorded by the learned conciliator recorded (supra):
the sketch of the plotting of the land which is part of the report dated 28th of October, 2018 and also our order dated 17th of December, 2018. Clarifying that, this settlement shall form part of the final decree.
(S. TALAPATRA) J (SANJAY KAROL) CJ MB