Calcutta High Court (Appellete Side)
Trimurti Complex (P) Ltd vs Promod Kumar Tewari And Others on 30 April, 2018
1 S/L. 21.
April 30, 2018.
MNS.
C. O. No. 798 of 2018 Trimurti Complex (P) Ltd.
Vs. Promod Kumar Tewari and others Mr. Saptangshu Basu, Mr. Debjit Mukherjee, Ms. Susmita Chatterjee, Ms. Dipanwita Ganguly ...for the petitioner.
Mr. Aniruddha Mitra, Mr. Anirban Ghosh, Mr. T. K. Sen ...for the opposite parties.
The petitioner filed a suit for partition, where the opposite party no. 3 was added as a defendant on her own prayer by the impugned order dated February 26, 2018.
The opposite party no. 3 has filed an independent suit for permanent injunction and consequential reliefs against the petitioner as well as opposite party nos. 1 and 2. The case of the opposite party no. 3, in both her own suit and in her application for addition of party in the present partition suit, is on the strength of her alleged possessory right over the suit property.
The court below, while allowing such application for addition of party filed by the opposite party no. 3, went on the premise that no effective decree can be passed in the partition suit if the opposite party no. 3 is not made over her possession pursuant to a 2 purported agreement to exchange dated May 7, 2010, on which the opposite party no. 3 relies.
Upon hearing the parties and perusing the materials on record as well as the impugned order, it is evident that the added defendant/opposite party no. 3 stakes her claim to the suit property entirely on the basis of the purported agreement to exchange dated May 7, 2010, but fails to disclose anywhere as to what steps she has taken, if at all, for specific performance of such agreement. In fact, in paragraph no. 8 of the plaint of her own suit, the opposite party no. 3 has categorically pleaded that unless the transferee makes over possession of "A Schedule" by July 31, 2010, the said agreement would be terminated and be treated as cancelled.
Moreover, since the best case of the opposite party no. 3 is on the terms of some possessory right claimed by her in the suit property, such right, even though ultimately vindicated in her suit, cannot entitle the opposite party no. 3 to be impleaded as a party to the partition suit between the co-owners, all of whom claim full-fledged title to the suit property.
As such, the impugned order dated February 26, 2018 passed by the Civil Judge (Senior Division), Second Court at Howrah in Title Suit No. 96 of 2016, allowing the application of opposite party no. 3 for being added as a defendant in the said partition suit, cannot be sustained as the same was passed without jurisdiction.
The opposite party no. 3 is neither a necessary nor a proper party to the partition suit and, as such, cannot be arrayed as a party therein.
Accordingly, C. O. No. 798 of 2018 is allowed on contest, thereby setting aside the impugned order dated February 26, 2018.
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It is made clear that this Court has not gone into the merits of the claim of the opposite party no. 3.
There will, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)