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2012 Supreme(Cal) 574
IN THE HIGH COURT OF CALCUTTA
Tapan Kumar Dutt and Mrinal Kanti Chaudhuri, JJ.
Kanak Prava Das - Appellants
Vs.
Prahlad Kumar Maity - Respondent
F.A. No. 23 of 2007
Decided On: 05.07.2012
For Appellant/Petitioner/Plaintiff: Samiran Giri
For Respondents/Defendant:P.B. Sahoo and Amit Baran Das for the respondent Nos. 3 & 4
A Trial Court should not decide a dispute without framing any issue in this regard.
Headnote:
PARTITION - SHARE DECLARATION - PARTITION SUIT - [Order 20 Rule 18(1) CPC] - The court set aside the declaration made by the trial court in so far as the right, title, and interest of the defendant No. 1 and the defendant Nos. 2 and 3 are concerned in the impugned judgment. The court held that it was not necessary for the learned Trial Court to go into the question of the validity of the alleged deeds of conveyance in favor of the defendant Nos. 2 and 3 in the present proceeding, particularly when a comprehensive suit in this regard is pending.
Fact of the Case:
The plaintiffs filed a suit for partition against the defendant No. 1/appellant and the defendant Nos. 2 and 3/proforma respondent Nos. 3 and 4. The defendant No. 1 contested the suit by filing a written statement wherein she claimed that she has got ultimately 3/4th share in the property left behind by Amarendra Nath Pal. The defendant Nos. 2 and 3 also filed a written statement. According to the said defendant Nos. 2 and 3, the defendant No. 1 after inheriting her share pursuant to her father's death and also inheriting the share of her brother Sourendranath Pal has transferred some portion of the suit land by two registered deeds in favor of the defendant Nos. 2 and 3 and had given possession of the same in favor of the defendant Nos. 2 and 3.
Finding of the Court:
The court held that the declaration made by the learned Trial Court in so far as the right, title and interest of the plaintiffs are concerned in the impugned judgment should be allowed to stand but the rest of the declaration with regard to the right, title and interest of the defendant No. 1 and the defendant Nos. 2 and 3 should be set aside. The court also held that it was not necessary for the learned Trial Court to go into the question of the validity of the alleged deeds of conveyance in favor of the defendant Nos. 2 and 3 in the present proceeding, particularly when a comprehensive suit in this regard is pending.
Issues: Whether the trial court was correct in declaring the shares of the defendants in the suit for partition when there was no such prayer in the pleadings by the parties.
Ratio Decidendi: The court held that even if it is assumed for the sake of argument that a Trial Court can decree in a preliminary form in a partition suit the shares of the defendants also even when there is no such prayer in the pleadings by the parties, in the facts of the instant case it would be difficult to adopt such procedure. The court also held that a Trial Court should not decide a dispute without framing any issue in this regard.
Final Decision: The court set aside the findings made by the learned Trial Court with regard to the validity and/or legality or otherwise of the alleged title deeds in favor of the defendant Nos. 2 and 3 (allegedly executed by the defendant No. 1) and we also set aside the preliminary decree and/or declaration made by the learned Trial Court in so far as the right, title and interest of the defendant No. 1 and the defendant Nos. 2 and 3 in the part of the title suit property concerned.
Tapan Kumar Dutt, J.
1. This Court has heard the learned Advocates for the respective parties. The respondent Nos. 1 and 2 as plaintiffs filed a suit for partition against the defendant No. 1/appellant and the defendant Nos. 2 and 3/proforma respondent Nos. 3 and 4. Such suit was numbered as Title Suit No. 22 of 2005 and was placed before the learned Civil Judge (Senior Division), 2nd Court, Contai.
2. It appears that the said suit was initially numbered as Title Suit No. 121 of 2003. The plaintiffs/respondents filed the said suit for preliminary decree for partition in respect of the property described in Schedule Ka/1 to the plaint which the plaintiffs claimed they had purchased from one Alokranjan Sinha and Krishnarani Mondal by a registered Deed of Sale. The total property has been described in Schedule Ka to the plaint.
3. It appears that Schedule Ka/1 property is part of the Ka Schedule property. The Ka Schedule property, according to the plaintiffs, originally belonged to one Amarendra Nath Pal and after his death, his legal heirs, namely, Sourindranath Pal, Haimabati Sinha and Indumati Pal and Kanak Prova Das inherited the said property in equal shares.
4. It further appears that Indumati Pal transferred her 174th share to her brother Sourendranath Pal and thus Sourendranath Pal became owner of 1/2 share of the property.
5. It further appears that there was an amicable settlement between Haimabati Sinha and Kanak Prova Das and in terms of such settlement Haimabati Sinha got Ka/1 Schedule property which she was possessing separately. Thereafter, it seems, that Haimabati Sinha died leaving behind her son Alokranjan Sinha and daughter Krishnarani Mondal. The said Alokranjan Sinha and Krishnarani Mondal transferred the said Ka/1 Schedule property to the plaintiffs by virtue of registered Kobala and the plaintiffs were given possession of the said Ka/1 Schedule property.
6. The plaintiffs have thus filed the suit for partition for having the said Ka/1 Schedule property separated from the total property (Ka Schedule). In the plaint, it appears that there was no prayer for declaring the shares of the defendants as such in respect of the rest portion in the Ka Schedule property (leaving out the Ka-1 Schedule property). None of the defendants also prayed for any decree for partition in respect of their respective shares of the property.
7. It appears from the case of the plaintiffs that the plaintiffs were only interested for having their purchased property (Ka/1 Schedule) separated from the total property (Ka Schedule).
8. The defendant No. 1 contested the said suit by filing a written statement wherein she claimed that she has got ultimately 3/4th share in the property left behind by Amarendra Nath Pal.
9. It is the further case of the defendant No. 1 that she came to learn from the plaint about two sale deeds being executed by her in favour of defendant Nos. 2 and 3 as regards the suit lands bearing Plot Nos. 980, 981 and non-suit plot No. 978. According to the defendant No. 1, the said two deeds were forged, illegal, not acted upon and those were obtained by defendant No. 2 and 3 by practicing fraud. According to the defendant No. 1 she never executed such deeds in favour of the defendant Nos. 2 and 3.
10. The defendant Nos. 2 and 3 also filed a written statement. According to the said defendant Nos. 2 and 3, the defendant No. 1 after inheriting her share pursuant to her father's death and also inheriting the share of her brother Sourendranath Pal has transferred some portion of the suit land by two registered deeds in favour of the defendant Nos. 2 and 3 and had given possession of the same in favour of the defendant Nos. 2 and 3.
11. The said suit came up for hearing and the learned Trial Court by the impugned judgment and decree decreed the suit in preliminary form declaring that the plaintiff has 1-1/4 decl. in plot No. 980, 2-1/4th decl. in plot No. 981 and 1/2 decl. in plot No. 983, the defendant Nos. 2 and 3 have 1-174t
