Calcutta High Court (Appellete Side)
Sri Matilal Sasmal & Anr vs Sri Sahadeb Kar & Anr on 8 August, 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 Shivakant Prasad S.A.T. 43 of 2017 (CAN 1482 of 2017) Sri Matilal Sasmal & Anr.
-Versus-
Sri Sahadeb Kar & Anr.
For the Defendants/Appellants : Mr. Nibaran Kumar Das,
Mr. Monish Kumar Das.
Heard on: 8th August, 2017.
Judgement on: 8th August, 2017.
Jyotirmay Bhattacharya, J. :-
This second appeal is directed against the judgement and decree dated 26th September, 2016 passed by the Learned Additional District Judge, 1st Court, Contai, District-Purba Medinipur in Title Appeal No. 5 of 2016 affirming the judgement and decree dated 30th January, 2016 passed by the Learned Civil Judge, Junior Division, 1st Court, Contai, District-Purba Medinipur in Title Suit No. 402 of 2012, at the instance of the defendants/appellants.
Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not.
Here is the case where we find that admittedly the property belonged to the Bankim Chandra Kar. On his death, his wife, three sons and two daughters inherited the suit property in equal share. It is also admitted position that two sisters gifted their shares in the suit property in favour of their elder brother viz. Sasanka. It is also an admitted position that the widow of Bankim babu gifted her share in favour of the wife of Sasanka. Thus, Sasanka and his wife viz. Chhabirani jointly became the owner of 2/3rd share in the suit property. The other two brothers jointly owned 1/3rd share in the suit property.
Sasanka and his wife Chhabirani jointly sold their 2/3rd share in the suit property to the defendants/appellants herein. The plaintiffs filed the instant suit for declaration of their 1/3rd share in the suit property and for injunction for restraining the defendants from coming into joint possession with the plaintiffs in the suit property. It is alleged by the plaintiffs that the 'Ka' schedule property is a compact plot comprising of several plots of land containing a dwelling house therein and as such, the stranger purchaser cannot be allowed to come into joint possession with the other co-sharers of the suit property. They thus, prayed for decree for declaration of their interest in the suit property and for injunction for restraining the defendants from disturbing the plaintiffs' possession in the suit property.
The defendants appeared in the said suit and contested the same by contending inter alia, that after purchasing the suit property, they got possession thereof from their transferor. They claimed that since they have already entered into possession in the 'Ka' schedule property and have been enjoining the same by way of cultivation, their possession cannot be disturbed by way of injunction. According to the defendants, Section 44 of the Transfer of Property Act cannot come into play in the instant case as the defendants have already taken possession of the suit property pursuant to their purchase thereof from their transferors.
The learned Trial Judge after considering the pleadings of the parties and their evidence was pleased to decree the said suit by declaring the plaintiffs' share to the extent of 1/3rd therein and passed a decree for permanent injunction by restraining the defendants from disturbing the plaintiffs' possession in the 'Ka' schedule property.
Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Court, the defendants preferred an appeal before the learned First Appellate Court. The learned First Appellate Court dismissed the said appeal by affirming the judgement and decree of the learned Trial Court.
The instant second appeal is directed against the said judgement and decree passed by the learned First Appellate Court.
The facts are more or less admitted by the parties. The defendants are the stranger purchasers of a joint property belonging to the members of the undivided Hindu joint family. Both the courts below held concurrently that the suit property is a compact plot comprising of several plots of land containing a dwelling house therein and the 'Ka' schedule property is jointly enjoyed by the members of the undivided Hindu joint family. Both the courts below held that the suit property has not yet been partitioned amongst the co-sharers by metes and bounds. As such, both the courts below rightly passed a decree for permanent injunction in such a suit which was framed under the scheme of Section 44 of the Transfer of Property Act.
Mr. Das, learned advocate appearing for the appellants submits that since the defendants have already taken possession of the suit property, they cannot be dispossessed by way of injunction. As such, they challenged the legality of the judgements and decrees of the courts below.
An identical issue was raised before the Hon'ble Supreme Court in the case of Bhuban Mohan Guha & Anr. -vs- Brojandra Chandra reported in AIR 1990 SC page 867 wherein the Hon'ble Supreme Court after taking into consideration the scheme of Section 44 of the Transfer of Property Act held that even a stranger purchaser can be removed from his possession by way of ex parte ad interim mandatory injunction, if the conditions contained in second paragraph of Section 44 of the Transfer of Property Act are satisfied.
We have already indicated above that both the courts below concurrently held that 'Ka' schedule property is a compact plot of land containing a dwelling house belonging to the members of the Hindu undivided joint family. It is also concurrently held by both the courts that the defendant is the stranger purchaser.
Thus, we hold that if such a stranger purchaser is allowed to come into joint possession with the plaintiffs and/or is allowed to continue his possession in the suit property, the privacy of the members of the Hindu undivided joint family will be affected. As such, Section 44 of the Transfer of Property Act squarely applies in the instant case and the court is required to pass appropriate order of injunction to prevent the stranger purchaser from coming into joint possession with the plaintiffs in the suit property for protecting the privacy of the members of the undivided Hindu joint family.
As such, we do not find any absurdity or any unreasonableness in the judgements and decrees of the courts below.
Under such circumstances, we do not find involvement of any substantial question of law in this appeal. We thus, find no merit in this appeal.
Accordingly, we decline to admit this appeal.
The appeal is, thus, dismissed.
Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the injunction application.
The application for injunction being CAN 1482 of 2017 is thus, deemed to be 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.) (Shivakant Prasad, J.) dp