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High Court Of Calcutta
Dipak Kumar Sen
JAHARLAL PAUL - Appellant
Versus
ANANDA CHANDRA PAUL - Respondent
Suit 1032 Of 1980
Decided On : 02/20/1981
TRANSFER OF PROPERTY ACT, 1882 - SECTION 44 - PARTITION ACT, 1893 - SECTION 4 - UNDIVIDED DWELLING HOUSE - PARTITION BY METES AND BOUNDS - INJUNCTION TO RESTRAIN STRANGER PURCHASER FROM TAKING POSSESSION - APPLICABILITY.
Fact of the Case:
A property was divided into four lots through arbitration, with each lot allotted to a member of the Pal family. A decree was passed in terms of the award, and separate municipal numbers were assigned to each lot. One of the lots was sold to a stranger, and another lot was sold to Monika Ghosh, who filed a suit and initiated criminal proceedings. The petitioner, Shib Nath, filed a suit claiming exclusive ownership of one of the lots and sought an injunction to restrain Ananda Chandra and Shib Nath from obstructing him from enforcing the award and constructing partition walls. He also sought a declaration that he had a right of passage on the ground floor through another lot.
Finding of the Court:
The court found that the premises had lost its character as an undivided dwelling house. The award and the decree passed in terms of the award had clearly demarcated the portions allotted to each family member, and the boundaries were ascertainable. The court also noted that a portion of the property had been irrevocably alienated to strangers, and other portions were in the hands of tenants.
Issues: 1. Whether the premises in question was still an undivided dwelling house belonging to an undivided family? 2. Whether the partition of the premises had been completed by metes and bounds? 3. Whether the petitioner was entitled to an injunction to restrain a stranger purchaser from taking possession of a portion of the premises?
Ratio Decidendi: 1. The court held that the premises had lost its character as an undivided dwelling house due to the clear demarcation of portions allotted to each family member in the award and the decree, as well as the alienation of a portion of the property to strangers. 2. The court found that the partition of the premises had been completed by metes and bounds, as the boundaries of the different lots were ascertainable from the plan annexed to the award. 3. The court held that the petitioner was not entitled to an injunction to restrain a stranger purchaser from taking possession of a portion of the premises, as the premises was no longer an undivided dwelling house and the stranger purchaser was not intending to intrude a common dwelling house.
Final Decision: The court dismissed the petitioner's application for an injunction, holding that the premises was no longer an undivided dwelling house and that the petitioner was not entitled to the prayers in his application in the suit.
( 1 ) THE property which is the subject-matter of the suit is premises No. 203/4. Bidhan Sarani, Calcutta (hereinafter referred to as the said premises ). Bv an award made in an arbitration on the 12th April, 1949 the said premises was divided into four lots being A, B. C and D. Lot A was allotted to Ananda Chandra Paul the defendant No. 1. Lot B was allotted to Jahar-lal Paul the plaintiff : Lot C was allotted to Manick Lal Paul the defendant No. 3 and Lot D was allotted to Sushila Bala Paul. The allottees belonged to the same family. A decree was thereafter passed in terms of the said award. The said lots have since been accorded separate municipal numbers and Lot A has been numbered as 203/4b and Lots B. C and D have been similarly numbered 203/4c, 203/4d and 203/4a Bidhan Sarani.
( 2 ) 203/4a Bidhan Sarani allotted to Manicklal has since been sold in execution and has been purchased by a stranger.
( 3 ) IN respect of the lots numbered 203/4a and 203/4c Bidhan Sarani litiga- tion has been had between the parties, Sushila Bala the allottee of 203/4a Bidhan Sarani executed a Deed of Settlement appointing Jaharlal as the trustee and Shib Nath Paul, the defendant No. 2 her son. was nominated the sole beneficiary. Sushila Bala died on the 7th Nov. 1977.
( 4 ) IN or about September 1979, Shib Nath filed a suit in this Court being Suit No. 701 of 1979 claiming absolute ownership of the said Lot No. 203/4a and for a decree against Jaharlal for Rs. 33. 236. 12 P. In the said suit an application was made bv Shib Nath which was ultimately decided in the Appeal Court by an order dated the 5th Dec. 1980. By the said order Jaharlal was given leave to sell premises No. 203/4c on condition that he would furnish a Bank guarantee for a sum of Rupees 20,000/ -.
( 5 ) ON the 3rd December. 1980 Jaharlal filed the present suit claiming, inter alia, a declaration that he was the exclusive owner of premises Number 203/4c. Bidhan Sarani. Calcutta; an injunction restraining Ananda Chandra and Shib Nath from obstructing him in enforcing the said award by construction of partition walls and for a further declaration that he had a right of passage on the ground floor through premises no. 203/4a.
( 6 ) AN interlocutory application was made in this suit in which an order was passed on the 23rd December, 1980 appointing a Receiver to demolish a wall to keen a common passage free.
( 7 ) THE present application is by Shib Nath praying for an injunction restraining Jaharlal and his servants and agents from parting with possession of the vacant portion of premises Number 203/4c, Bidhan Sarani. to one Monika Ghosh or any other person who is a stranger to the family and for a receiver for taking symbolical possession of the said portion.
( 8 ) IT is inter alia, alleged in the petition that though a decree has been passed on the said award of 1949 the same has not been implemented. Owelty money has not been paid. Separate electric meter have not been installed and no physical partition has been effected. It is further alleged that Jaharlal Pal has entered into an agreement of sale of the said premises No. 203/4c, Bidhan Sarani to one Monika Ghosh. It is alleged that the said Monika Ghosh has filed a suit in the City Civil Court Calcutta in respect of the said premises No. 203/4c which is pending. It is alleged that the said Monika Ghosh also instituted Criminal Proceedings. It is alleged that Monika Ghosh intends to take possession of the premises No. 203/4c, Bidhan Sarani Calcutta. It is contended that she is not entitled to do so and after the sale is complete can only file a suit for partition and possession. It is further contended that the petitioner has a right to file a suit for pre-emption against any stranger purchaser of premises No. 203/4c, Bidhan Sarani and that a prospective purchaser has no legal right to take possession of the said premises to frustrate a prospective suit for pre-emption.
( 9 ) JAHARLAL has filed an affi
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