Calcutta High Court (Appellete Side)
Sri Shyam Kumar Panja & Anr vs Lakhiniwas Chittlangia on 11 September, 2019
Author: Hiranmay Bhattacharyya
Bench: Harish Tandon, Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
BEFORE:
The Hon'ble Justice Harish Tandon
And
The Hon'ble Justice Hiranmay Bhattacharyya
F.M.A.T. 451 OF 2019
With
CAN 4544 of 2019
Sri Shyam Kumar Panja & Anr.
-vs-
Lakhiniwas Chittlangia
For the Appellants : Mr. Debjit Mukherjee,
Ms. Susmita Chatterjee
For the Respondents : Mr. Prabal Kumar Mukherjee
Heard on : 10.7.2019
Judgment on : 11.9.2019
Hiranmay Bhattacharyya, J.:
The instant appeal is directed against an order dated January 29, 2019 passed by the Civil Judge, (Senior Division), 1st Court, Howrah in Title Suit No. 573 of 2018 whereby the plaintiffs' application under Order 39 Rule 1 and 2 of the Code of Civil Procedure was rejected.
The appellants herein being the plaintiffs filed a suit for partition upon declaration of plaintiff's title to the extent of 37 decimals and that of the defendant to the extent of 15 decimals in the said property, permanent injunction and for other consequential reliefs.
2
The plaintiff's case in a nutshell is as follows:
The suit property involved in the instant suit is a "Sali" land measuring about 52 Decimals comprised within Mouja-Kolora in R.S. Dag No. 6304, L.R. Dag No. 5514 under Police Station Domjur, in the District of Howrah. The father of the plaintiffs namely Kishori Mohan Panja, since deceased became the owner of Sali land measuring about 53 decimals in R.S. Dag No. 6304 and 26 Decimals in R.S. Dag No. 6311 by virtue of a registered deed of conveyance dated January 22, 1941 and was in possession of the same. A portion of Dag No. 6311 measuring about 20 Decimals was acquired for National Highway. 01 Decimal of land in Dag No. 6304 was also acquired by the Government. The said Kishori Mohan Panja transferred 15 decimals from Dag No. 6304 and 06 decimals from Dag No. 6311, total measuring about 21 Decimals in favour of Prabhabati Kundu and Shantilata Kundu by a registered deed of sale being deed No. 1672 of the year 1963. The said Prabhabati Kundu and Shantilata Kundu transferred the aforesaid 21 Decimals of land in Plot Nos. 6304 and 6311 in favour of the defendant by a registered deed of sale being deed No. 6356 for the year 1973.
The said Kishori Mohan Panja retained 37 decimals of land in R.S. Dag No. 6304. In the meantime Kishori Mohan Panja died in the year 1973 leaving behind him surviving two sons i.e. the plaintiffs herein who became the joint owners of the suit plot. At the time of mutation in the settlement office there was a wrong recording of the share of Kishori Mohan Panja in respect of R.S. 3 Dag No. 6304 corresponding to L.R. Plot no. 5514. The plaintiffs filed an application for correction of such erroneous recording in the Record of Rights and the said application was disposed of by directing that in R.S. Plot No. 6304 corresponding to L.R. Plot No. 5514 out of total area of 52 Decimals, 15 decimals will be recorded in the name of the defendant and 37 decimals will be recorded in the name of Kishori Mohan Panja. The suit property is a joint property surrounded by boundary wall constructed at the joint expenses of the parties. Problems cropped up in joint possession of the suit property by the parties and the plaintiffs requested the defendant to effect amicable partition of the suit property, which the defendant refused. The defendant was creating disturbances in the peaceful possession of the plaintiffs in the suit property and was trying to change the nature and character of the same. The defendant was trying to encumber the property to some stranger purchasers. As such the plaintiff was compelled to file the instant suit.
On such allegations, the plaintiffs took out an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure inter alia praying for an order of temporary injunction restraining the defendant and his men and agents from creating any disturbances in the peaceful possession of the plaintiffs in the suit property and/or from changing the nature and character and/or from transferring and encumbering the suit property or any portion thereof and/or from doing any other illegal and wrongful act in connection therewith.4
The defendant/ respondent herein contested the application under Order 39 Rule 1 and 2 of the Code by filing a written objection denying the material allegations contained therein. It was specifically denied by the defendant that 20 decimals of land in R.S. Dag No. 6311 is acquired by National High Way. It was further denied that one Decimal of land from R.S. Dag 6304 was acquired by the Government. It was stated by the defendants in the written objection that Prabhabati Kundu and Shantilata Kundu transferred land measuring about 1 Bigha 15 Kathas 13 Chetaks comprising of Dag No. 6305 and 6304 in favour of the defendant. It was further stated therein that Kishori Mohan Panja being the original owner sold demarcated portion of the property in favour of Prabhabati Kundu and Shantilata Kundu who subsequently sold the demarcated portion to the defendant. The defendant constructed boundary over the suit property. It was specifically denied that the suit property is a joint property. The defendant thus prayed for dismissal of the application for temporary injunction.
The learned Trial Judge by an order dated January 29, 2019 rejected the application under Order 39 Rule 1 and 2 of the Code on contest upon holding that the defendants are enjoying specific demarcated portion by raising boundary wall. The learned Judge held that the allegations of the defendant that they have raised boundary wall have not been controverted by the plaintiffs by filing any counter affidavit. The learned Trial Judge further held that the plaintiffs do not have a strong prima facie case to go to trial and the plaintiffs will not suffer any irreparable loss and injury if the order of 5 injunction is not issued in their favour. It was further held therein that the balance of convenience and inconvenience do not tilt in favour of the plaintiffs.
Mr. Debjit Mukherjee, learned Advocate appearing on behalf of the appellant submits that Kishori Mohan Panja retained 37 decimals of land in R.S. Plot No. 6304 after transfer of 15 Decimals of land from the said plot in favour of Prabhabati Kundu and Shantilata Kundu. He further submits that upon the death of Kishori Mohan Panja, his right, title and interest in R.S. Dag No. 6304 to the extent of 37 decimals devolved upon his heirs and heiresses i.e. the plaintiff's herein. He also submits that the suit property is an undivided property and the plaintiffs and the defendant are the co-sharers. He submits that so long the property remained joint, no shareholder his any right to change the nature and character of the suit property. He further submits that in the event the defendant raises construction on the best portion of the suit property, ultimately when the suit for partition will be decided, the defendant will claim equity in respect of the improvements made to the joint property and will claim allotment of the portion where construction may be raised by him.
Mr. Debjit Mukherjee relied on a Division Bench judgement of this Court in the case of Lekjan Bibi Vs. Idris Ali reported in 2015 SCC Online Cal 2559. He also refers to an unreported judgement of the Division Bench of this Court delivered on 7.12.2018 in the case of Manoj Kumar Mondal and Ors. Vs. Saroj Kumar Mondal and Ors. (FMAT 992 of 2018 with CAN 7787 of 2018).
6
Per contra, Mr. Probal Kumar Mukherjee learned Senior Advocate for the defendants/ respondents submits that the original owner Kishori Mohan Panja transferred specific demarcated portion in favour of Prabhabati Kundu and Shantilata Kundu. Probhabati Kundu and Shantilata Kundu, thereafter, transferred the said specific demarcated portion in favour of the defendant. Since the original owner has transferred the property by specific demarcation, neither Kishori Mohan Panja nor his heirs and successors can claim to be the co-sharers of the defendant. He thus submits that the instant suit for partition is not maintainable as there is no unity of title as well as possession between the parties to the suit in respect of the suit property. By referring to the deed of 1963, Mr. Mukherjee submits that 59 decimals of land comprising Dag Nos. 6304 and 6311 were transferred by Kishori Mohan Panja in favour of Prabhabati Kundu and Shantilata Kundu. He submits that the said 59 decimals of the aforesaid plots were transferred by the Kundu's in favour of the defendant by the deed of 1973. He thus submits that the learned Trial court was justified in rejecting the application for temporary injunction.
We have heard the learned Advocates appearing on behalf of the respective parties and have considered the materials available on record.
It appears from the recitals of the registered deed of conveyance dated 31st May, 1973, by virtue of which Prabhabati Kundu and Shantilata Kundu transferred their right, title and interest in favour of the defendant, that a portion of plot Nos. 6304 and 6305 were transferred. It appears from the 7 schedule of the said deed(Part-I) that 38 decimals in Dag No. 6305 and 21 decimals in Dag No. 6304 total aggregating 1 Bighas 15 Kathas 13 Chittaks were transferred by the Kundu's in favour of the defendant herein.
It further appears from the deed dated 6th March, 1963 that R.S.Dag No. 6304 measures about 53 decimals and R.S. Dag No. 6311 measures about 6 decimals. The total area of land comprised in the aforesaid two plots are 59 decimals. It has been mentioned in the schedule of the said deed that the land measuring about 21 decimals from the aforesaid plots after acquisition by the Government for construction of National High Way was transferred by Kishori Mohan Panja in favour of Prabhabati Kundu and Shantilata Kundu from Plot Nos. 6304 and 6311. But Prabhabati Kundu and Shantilata Kundu transferred 21 decimals from R.S. Dag No. 6304 only by the deed of conveyance dated 31st May, 1973 in favour of the defendant. It further appears from the schedule of the deed of 1963 that a portion of land of R.S. Dag Nos. 6304 and 6311 was acquired and the remaining portion was transferred by Kishori Mohan Panja in favour of the Kundu's. But the said deed is silent as to how much portion was acquired from which plot of land. The quantum of land retained by Kishori Mohan Panja in Plot Nos. 6304 and 6311 will be dependent upon the quantum of land acquired by the Government for construction of National High Way. The said fact is to be decided at the time of trial when the parties will lead evidence in support of their respective cases.
8
It appears from the order passed by the Block Land and Land Reforms Officer in the proceeding under Section 50(9) (b) and Section 57 of the West Bengal Land Reforms Act, 1955 being Misc. Petition case No. 33 of 2017 that in R.S. Plot No. 6304 corresponding to LR Plot No. 5514 out of the total area of 52 decimals 15 decimals will be recorded in the name of the defendant and 37 decimals will be recorded in the name of Kishori Mohan Panja. Pursuant to the said order the L.R. Record of rights were rectified and the defendants have filed the finally published L.R. Record of Rights where from it appears that 15 Decimals in R.S. Plot No. 6304 has been recorded in the name of the defendant and 37 Decimals in the said plot has been recorded in the name of Kishori Mohan Panja. Thus it prima facie appears that the plaintiffs have right, title, interest and possession in respect of the suit property though the exact share of the parties shall have to be decided by trial on evidence.
Though the defendant/ respondent herein claim that they have purchased well demarcated portion of the property and as such they are in exclusive possession of the same and the plaintiffs have no title and/or possession in respect of the suit property, but, upon considering the materials on record more particularly the title deeds of the year 1963, we are of the prima facie view that the suit property is still a joint and undivided property.
In Paragraph 9 of the application for injunction, the plaintiffs have claimed that the suit property is a joint property surrounded by boundary wall at the joint expenses of the parties. In the Affidavit-in-reply to the written 9 objection filed by the defendant, the plaintiffs have specifically denied that the suit property is a joint property and also that the defendant has constructed the boundary wall. Thus the finding of the learned Trial Judge that the defendants are enjoying specific demarcated portion by raising boundary wall as the statements made in the Written Objection is uncontroverted is a perverse finding and it is held that the suit property is a joint and undivided one.
Plaintiffs have succeeded in proving at this stage that they have a share in the suit property. From the Record of Rights it also appears that the plaintiffs are in possession of a portion of the property. There is no doubt that a Record of Right is a document of possession. It is equally true that an entry in the finally published record of rights neither creates any title in favour of a party not does it extinguish the same. An entry in the finally published Record of Rights is presumed to be correct unless the same is rebutted by the adverse party. At this stage no document is forthcoming from the side of the defendant to rebut the presumption attached to an entry in the finally published Record of Rights. The plaintiffs claimed to have a share in the joint property and has filed the instant suit for partition and for separation of shares. So long as the property remains joint, no share-holder has any right to change the nature and character of the suit property. If any shareholder is allowed to change the nature and character of the suit property, ultimately the relief which the co- sharer deserves in the partition suit may not be ultimately granted to them. 10
In the application for injunction filed before the Trial Court, the plaintiffs prayed for an order of injunction restraining the defendant from creating any disturbance in the peaceful possession of the plaintiffs in the suit property and/or from changing the nature and character and/or from transferring and encumbering the suit property till the disposal of the suit.
Since the property is a joint property, it is presumed that the parties have their respective right, title and interest to the extent of their shares in the joint property and a co-sharer holds possession not only on his behalf but also on behalf of the other co-sharer as well in such property. The plaintiff has filed a suit for partition thereby admitting that the defendants are his co-sharers. As such no injunction can be passed restraining a co-sharer from possessing the joint property. It is also equally true that a co-sharer cannot be prevented or precluded from divesting his right, title and interest pending the partition suit. There is no law which prevents a co-sharer from transferring his/her share in the joint property. There is no impediment or fetter on the part of the co- sharer in alienating or transferring his share in respect of the joint property as the transferee pendente lite shall be bound by the final decree that may be passed in the instant suit for partition. Thus, no order of injunction should also be passed restraining the defendants from transferring and/or encumbering the suit property.
However, in the event the defendants/respondents are allowed to change the nature and character of the suit property, ultimately when the instant suit 11 for partition will be disposed of, the plaintiff may not get the relief which he deserves. In the event the defendant raises any construction on the best portion of the property, the defendant will claim equity in respect of the improvements made to the joint property and will claim allotment of such portion at the time of final decree. It is not the case of the defendants/respondents that they have commenced the work for construction or that the construction has progressed substantially before the filing of the suit. In the event the defendant is not restrained from changing the nature and character of the suit property during the pendency of the suit, the situation may become irreversible by the time the suit will the disposed of. Thus, the balance of convenience and inconvenience is in favour of the plaintiff/appellants and he will suffer irreparable loss and injury unless an order of injunction is passed in his favour restraining the defendant from changing the nature and character of the suit property.
In Lekjan Bibi (supra) it has been held that so long as the property remains joint no share holder has any right to change the nature and character of the suit. In that case, this court refused to interfere with the ad interim order of injunction for maintenance of status quo passed by the learned Trial judge in a suit for partition.
In Manoj (supra) it has been held that any attempt to diminish the value of the joint property should not be permitted until the partition suit is decided finally by passing the final decree. It was further held therein that there cannot 12 be any impediment or fetter on the part of the co-sharer in alienating or transferring his share in respect of the joint property.
The ratio decided in the case of Lekjan Bibi (supra) and Manoj (supra) are squarely applicable to the facts of this case. We are of the view that the plaintiffs have a prima facie case to go for trial. The balance of convenience and inconvenience is in favour of the plaintiff/appellant herein and the plaintiff/appellant will suffer irreparable loss and injury unless an order of injunction restraining the defendants/respondents from changing the nature and character of the suit property is passed. The impugned order thus suffers from infirmity and the same is set aside. The defendants/respondents are restrained by an order of injunction from changing the nature and character of the suit property till the disposal of the suit. The appeal is thus allowed.
In view of the disposal of the appeal, the connected application being CAN 4544 of 2019 has become infructuous and the same is also disposed of accordingly. There shall be however no order as to costs.
The urgent Photostat certified copy of this order, if applied for, is given to the parties on priority basis upon compliance of all formalities.
I agree.
(Harish Tandon, J.) (Hiranmay Bhattacharyya, J.)