Tripura High Court
Defendant No vs Sri Rajib Paul Chowdhury on 25 February, 2022
Bench: Arindam Lodh, S. G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
RFA No. 24 of 2019
Sri Sajib Paul Chowdhury
Son of late Swadesh Rn. Paul Chowdhury,
resident of Town Pratapgarh Road No.1,
PO-Agartala, PS-West Agartala, District-Unakoti, Tripura.
............... Defendant No.1 Appellant(s)
Versus
1. Sri Rajib Paul Chowdhury
Son of late Swadesh Rn. Paul Chowdhury
resident of Gangail Road, Opp. to Ramkrishna Mission,
PO Agartala, PS West Agartala, District Tripura West
............... Plaintiff Respondent(s)
2. Smt. Suparna Natta Wife of Sri Sunil Natta, resident of C/O Sajib Paul Chowdhury, Son of Swadesh Rn. Paul Chowdhury, Town Pratapgrh Road No.1, PO Agartala, PS West Agartala, District Tripura West.
3. Sri Subhash Barman Roy Son of late Nripendra Barman Roy, resident of C/O Sajib Paul Chowdhury, Son of Swadesh Rn. Paul Chowdhury, Town Pratapgrh Road No.1, PO Agartala, PS West Agartala, District Tripura West.
4. Sri Jahar Saha Son of not Known resident of C/O Sajib Paul Chowdhury, Son of Swadesh Rn. Paul Chowdhury, Town Pratapgrh Road No.1, PO Agartala, PS West Agartala, District Tripura West.
............... Proforma Defendant Respondent(s) BEFORE HON'BLE MR. JUSTICE ARINDAM LODH HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Appellants(s) : Mr. D. Deb, Advocate For Respondent(s) : Mr. H. Laskar, Advocate Date of hearing & delivery of Judgment and Order : 25th February, 2022.
Whether fit for reporting : NO.
RFA No.24/2019
Page - 2 of 8
JUDGMENT AND ORDER(Oral)
This appeal under Section 96 of the Code of Civil Procedure, 1908 arises out of the judgment and decree dated 05.10.2018 passed by the Civil Judge (Sr. Division), West Tripura, Agartala in T.S (Partition) 01 of 2017. [2] Appellant and respondent are full-blooded brothers. The respondent being plaintiff filed a suit in the trial Court seeking partition of the joint property specified in Schedule-A of the plaint. Pleaded case of the respondent (plaintiff before the trial Court) was as under:
Plaintiff‟s father Swadesh Rn. Paul Chowdhury purchased the suit land measuring 0.0800 acres from one Birendra Ch. Saha by registered sale deed No.1-12504 dated 9.12.1968 (Exbt.1). Said Swadesh Rn. Paul Chowdhury died leaving behind his wife, Sudharani Paul Chowdhury and his two sons namely, Sajib Paul Chowdhury (appellant) and Rajib Paul Chowdhury(respondent). The two brothers and their mother inherited the property left by their deceased father in equal share. Their mother, Sudharani died on 31.10.2013. After the death of their mother, each of the two brothers became entitled to half of the share of the suit property. The record of rights was prepared in their names in Khatian No.395 of Agartala mouza in Sheet No.17 of Touzi No.392. During his life time their father constructed a two storied house in the scheduled land. In the year 2000, the respondent (original plaintiff) left for Pune in Maharastra where he got an employment. Having returned from Pune in January, 2016 plaintiff found that among the 11(eleven) rooms constructed by his late father, appellant (original defendant) rented five rooms and among the other six rooms, three rooms were occupied by him and RFA No.24/2019 Page - 3 of 8 his family and the other three rooms were also kept under lock and key by him. Having been provided with no accommodation in his own house, the plaintiff took a house on rent at Gangail road, Agartala. Several times he requested his defendant brother (appellant herein) for amicable partition of the suit property left by their parents. The defendant paid no heed to his proposal. Plaintiff also requested his defendant brother to give him 50% of his share of the rent collected by him from the said ancestral property. But the defendant did not entertain his claim. Cause of action arose in September, 2016 when the plaintiff finally requested his defendant brother to make a partition of the said property and such request was turned down by the defendant. [3] The tenants to whom the defendant rented three rooms in the ancestral house of the plaintiff, were impleaded as proforma defendants 2, 3 and 4 in the suit. Notice was issued to the defendant as well as to the said proforma defendants.
[4] The defendant brother of the plaintiff contested the suit by filing written statement. In his written statement it was asserted by him that during his life time, their father took up the construction of a double storied building in their house but he died before the construction was complete. The defendant completed the construction of the building. Defendant admitted that three rooms of the house were let out by him. According to him he rented those rooms in consultation with his plaintiff brother. Defendant also admitted the fact that three rooms of the house were kept under lock and key. According to him, the plaintiff has kept his belongings in those rooms and kept those rooms under lock and key. Admittedly he occupied the other three rooms in the house RFA No.24/2019 Page - 4 of 8 along with his family. He asserted that he had been regularly paying 50% of the rent collected by him from tenant to his plaintiff brother. [5] The case proceeded ex parte against the proforma defendants as they did not turn up to take part in the proceeding despite receiving summons. [6] Based on the pleadings of the parties, the trial Judge framed the following issues:
(i) Is the suit maintainable in its present form and nature?
(ii) Is there any cause of action for filing the suit?
(iii) Is the suit property mentioned in Schedule-A as well as the movable properties mentioned in Schedule-B are joint properties and, if so, whether the property in Schedule-A is liable to be partitioned in equal share between the plaintiff and defendant and whether they are also entitled to equal share of the movable properties of Schedule-B.
(iv) What shall be the quantum of share of each of the parties?
(v) Is the plaintiff entitled to the decree as prayed for?
(iv) What other relief/reliefs the plaintiff may be entitled to?
[7] In order to prove his case plaintiff examined himself as PW-1 and relied on the certified copy of the registered sale deed (Exbt.1) and computerised copy of khatian (Exbt.2).
[8] The defendant on the other hand examined three witnesses including him. He examined himself as DW-1. One Sri Jahar Saha as DW-2 and Sri Sushen Sankar Das as DW-3. He however, did not adduce any documentary evidence in support of his case.
RFA No.24/2019
Page - 5 of 8 [9] On appreciation of evidence, the learned trial Judge while answering Issue No.1 as also Issue No.2 with respect to the maintainability of the suit and the cause of action decided both of those issues in the affirmative. [10] The trial Judge while answering Issue No. 3 as also Issue No.4 together, returned the following findings:
"12. It is pleaded by the defendant No.1 that father of the defendant No.1 started construction on the suit land but he could not complete the same and after the death of the father the defendant No.1 completed the construction of two storied building at his own cost and plaintiff made no contribution in such construction. DWs.2 and 3 also supported such contention.
But there is nothing in their evidence nor in the written statement when such construction took place, what was the amount of investment made by the defendant No.1. No document in this respect has been produced by the defendant No.1.
In the examination-in-chief of the DW.1 i.e. the defendant No.1 in para 2 it is mentioned that he was incurred an amount of Rs.50,00,000(fifty lakhs) only for the construction purpose on the suit land and also spent Rs.6,00,000(Six lakhs) for development of the back side of the building and also for making of the shed of the garge and one room made of GCI sheet. Suggestion on this fact was given during cross-examination of PW.1. But on perusal of written statement of the defendant No.1 no such pleading has been found. So being an evidence beyond pleading it cannot be considered rather adverse inference is to be drawn in this respect against the defendant No.1.
In this respect in a case between Kashi Nath (Dead) Through Lrs. V. Jaganath reported in 2003 (8) SCC 740 it was held "As noted by the Privy Council in Sidiqui Mohammad Shahg V. Mst. Saran And Ors. (AIR 1930 PC
57), and M/s. Trojan and Co. V. RM. N.N Nagappa Chetiar (AIR 1953 SC 235) when the evidence is not in line with the pleadings and is at variance with it and as in this case in virtual self contradiction, adverse inference has to be drawn and the evidence cannot be looked into or relied upon."
Thus, the view taken by this court gets support of the above case law. Hence, matter of construction RFA No.24/2019 Page - 6 of 8 allegedly made by the defendant No.1 cannot be taken into consideration. Hence, it can be viewed that the suit land mentioned in schedule „A‟ of the plaint is liable to be partitioned in two equal shares.
13. Regarding the properties mentioned in schedule „B‟ of the plaint it can be said that those are admittedly the properties of plaintiff and so question of partition of those properties does not arise.
14. Plaintiff by filing a separate petition dated 14.03.18 prayed before this court to direct the defendants to deposit 50% share of rents collected from the rented rooms of the suit land in this court as the plaintiff is entitled to have such share.
In the plaint also the plaintiff sought for such direction. In the written statement it is stated by the defendant No.1 that he regularly paid 50% share of such rent to the plaintiffs. But there is no such claim made by the plaintiff in his plaint nor he gave any details of such rent like, the period of claim, amount of rent etc. So, in absence of such details this court cannot pass any order for giving 50% share of the rent to the plaintiff.
So, the quantum of share for the landed property will be 50% for each of the share holders.
Hence, these issues are decided accordingly." [11] In so far as the last two issues, viz. Issue No.5 and 6 concerning the entitlement of the plaintiff to the decree is concerned, the learned trial Judge resolved those issues as under:
"15. Issue No. (v) & (vi) :
Here this court is to decide whether the plaintiff is entitled to get a decree as prayed for and any other relief of reliefs can be granted.
In the plaint the plaintiff prayed for partition of the suit property mentioned in the schedule of the plaint and to draw up preliminary decree accordingly.
As per the decision of issue No.(iii) and (iv) the plaintiff is entitled to get 50% share of the suit land mentioned in the schedule of the plaint. So he is entitled to get a decree in this respect. No other relief or reliefs can be granted to the plaintiff.
Hence, these issues are decided accordingly.
16. ORDER RFA No.24/2019 Page - 7 of 8 In the result, this suit is decreed on contest with declaration that the plaintiff and defendants No.1 are entitled to get 50% share each on the suit land appertaining to khatian No.395 comprised in R.S Plot No.881 measuring 0.0800 acres mentioned in the schedule "A" of the plaint.
Prepare decree accordingly.
Sheristadar of my Court is hereby directed to prepare the decree in the light of my above judgment and to place it before me for my signatures within 15(fifteen) days from the date of passing of this Judgment.
Plaintiff and defendant No.1 are directed to make amicable partition of decreetal land as per the share mentioned above and shall submit a report before this Court after such partition for drawing up the final decree within a period of one month from this date and if they fail to do so they may approach before this court for partition of the land by appointing Survey Commissioner." [12] Heard Mr. D. Deb, learned counsel appearing for the appellant (respondent in the trial Court). Also heard Mr. H. Laskar, learned counsel representing the respondent (plaintiff before the trial court). We have also interacted with the appellant, Sajib Paul Chowdhury who has appeared in person before this Court and his respondent brother, Rajib Paul Chowdhury who has appeared from Pune through virtual mode in furtherance of an effort for amicable settlement as the parties are full blooded brothers. But the effort did not work. Perused the pleadings of the parties and evidence adduced on their behalf.
[13] The plaintiff(respondent herein) categorically asserted in his pleadings as well as in his evidence before the trial Court that his father constructed the whole two storied building consisting of 11(eleven) rooms in the house in which he along with his elder brother(appellant) and their mother used to live until their mother died on 31.10.2013. The defendant (appellant RFA No.24/2019 Page - 8 of 8 herein) could not impeach the evidence of his plaintiff brother. He could not also establish his assertion that half of the building was constructed by his father and half of it was done by him. For argument‟s sake, even if it is proved that part of the building was constructed by the appellant, respondent (original plaintiff) cannot be denied his share of the property on this ground. There is no denial of the fact that the suit property in schedule-A was purchased by their father and after the death of their father and mother they have become entitled to equal share of the suit property. Exbt.2(khatian) which is the extract of the records of rights of the suit property also indicates that record of rights has been prepared in their names in respect of the said property. Situated thus, the learned trial Judge did not commit any error by directing the partition of the suit property in equal share between the two brothers. [14] Consequently, the appeal fails and the judgment and decree passed by the learned trial Judge has been affirmed. Decree be drawn up accordingly.
[15] In terms of the above, the appeal stands disposed of. Send down the LCR.
JUDGE JUDGE
Dipankar
RFA No.24/2019