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High Court Of Calcutta
M. N. RAO, MAHITOSH MAJUMDAR
KATYA BALA DASI - Appellant
Versus
NILMONI PAKHIRA - Respondent
A. F. O. D. 471 Of 1974
Decided On : 05/02/1986
M. N. ROY, J. ( 1 ) THIS appeal from original decree, was directed against the judgement and decree dated 28th July 1973, as passed in Title Suit No. 50 of 1968 by Shri S. N. Ghose, the learned Subordinate Judge, 1st Court, Nooghly and whereby, the concerned Title Suit was decreed in a preliminary form on contest and it was declared that the plaintiff/respondents would have 8 annas share in 'ka' Schedule properties of the plaint and they would also be entitled to get their shares partitioned by metes and bounds. The parties were further directed to effect an amicable partition by 31st Aug. 1973, falling which, it has been directed that a Partition Commissioner would be appointed by the Court, for effecting partition as per the share as mentioned above, upon an application made by either of the parties.
Fact of the Case:
The suit was filed by the plaintiff/respondents for partition of joint family property. The defendants/appellants resisted the suit on the ground that there was a previous partition between the parties during the lifetime of Sashibhusan and both of them got a partition of their ancestral properties, and, accordingly, they possessed their lands and, thereafter, Sashibhusan died and the widow Durgabala, made an oral sale of her lands in favor of Panchanan and she left the village and went to her father's house and therefrom, Panchanan was in exclusive possession of all the plots in suit and the plaintiffs had brought into existence the said fictitious Deed of Sale (Ext. 1) and in fact, they had not paid any consideration money to Durgabala. It was also contended, that the plaintiffs had no means to pay such consideration money and the R. S. record of rights, in respect of the plots in question, were prepared as per the respective possession of the parties.
Finding of the Court:
The learned Court below has observed that possession of Durgabala was proved, so the plaintiff Pakhira should also be held to be in possession of the lands in suit and as such, they would be entitled to claim the moiety share of those lands in suit, which originally belonged to Sashibhusan.
Issues: 1. Was there any previous partition ? 2. Is the deed dated 4-1-68 in favour of the plaintiffs a collusive one ? Have the plaintiffs acquired any interest by the Deed ? 3. Are the plaintiffs entitled to get a decree prayed for ?
Ratio Decidendi: The court held that the plaintiff/respondents had received due title in respect of the shares as indicated hereinbefore. in respect of the lands in suit, which previously belonged to Sashibhusan and thereafter devolved on Durgabala Dasi. The court also held that there was no merit in the submissions of Mr. Banerjee on the question of family settlement.
Final Decision: Appeal dismissed. There will be no order as to costs. The judgment and decree as impeached, are affirmed.
( 1 ) THIS appeal from original decree, was directed against the judgement and decree dated 28th July 1973, as passed in Title Suit No. 50 of 1968 by Shri S. N. Ghose, the learned Subordinate Judge, 1st Court, Nooghly and whereby, the concerned Title Suit was decreed in a preliminary form on contest and it was declared that the plaintiff/respondents would have 8 annas share in 'ka' Schedule properties of the plaint and they would also be entitled to get their shares partitioned by metes and bounds. The parties were further directed to effect an amicable partition by 31st Aug. 1973, falling which, it has been directed that a Partition Commissioner would be appointed by the Court, for effecting partition as per the share as mentioned above, upon an application made by either of the parties. The said Title Suit No. 50 of 1968 was heard analogously with Title Suit No. 50 of 1971 of the same Court and which was filed by the defendants Smt. Katya Bala Dasi and another and the subsequent suit was dismissed on contest.
( 2 ) THE 'ka' schedule properties as involved in Title Suit No. 50 of 1965 comprised of 1. 55 decimal of land of different khatians in district Hooghly, P. S. Singur, appertaining to J. L. No. 60 of Mouza and village Mirzapur and Bankipore respectively and it would appear that they originally belonged to Abinash Chandra Das and the said Shri Das owned and possessed the land in question, on his own right and he died leaving his two sons, Panchanan Das and Sashi Bhusan Das as his heirs. The said Panchanan Das was the principal defendant No. 1 in the Title Suit under consideration and it has been stated that the said Panchanan Das and Sashi Bhusan Das jointly obtained in equal shares the properties as left by their father, Abinash Das and they also owned and possessed the properties in question jointly and in khas by virtue of their inheritance.
( 3 ) SASHI Bhusan Das died childless, leaving his wife Smt. Durgabala Dasi as the only heiress and it has been stated that the said Durgabala obtained 8 annas interest of Sashi Bhusan, by virtue of her inheritance, along with other properties and remained in enjoyment and possession of the properties in suit jointly with the said Panchanan Das, by paying rents, rates and taxes. It has been stated that the said Durga Bala Dasi it her turn, sold half share in the properties in suit, by virtue of a registered Deed of Sate (Ext. 1) as executed on 4th Jan. 1968 corresponding to 19th Pous, 1374 B. S. and registered on the next day i. e. 5th Jan. 1968, on a consideration of Rs. 10,000/-, in favour of the plaintiff/respondents and became divested of such of the said share of the properties and on the very same day, put the plaintiffs into possession and as such, they became the owners in possession in respect of the half share of her property and the plaintiffs have further stated that since then they were and are in enjoyment and possession of the said properties on acquisition of good title and on payment of rent. It was their case that they have also been enjoying and possessing the properties in suit by exercising their rights in all respects including accepting fruits, taking share of the fish of the doba and tank and enjoying them, apart from enjoying the trees and other usufructs.
( 4 ) THE plaintiffs have stated that in the current Khatian No. 472, there has been no mention of the name of their vendor in the parcha and thus those records were erroneous. In any event, they have stated that the said 8 annas share of Durgabala should have been shown in those records. It was their further case that in the recent Khatian Nos. 761 and 468, the words, "sashi Bhusan had no possession by virtue of amicable partition" as mentioned, were erroneous and that too, as the lands in both the khatians were in possession of Sashibhusan and his wife, Durgabala all along. It has been alleged that Panchanan Das (defendant No. 1) taking recourse to fraud, had caused such wrong entries
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