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2016 Supreme(Cal) 337
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Indrajit Chatterjee, J.
Raihan Sk & ors. - Petitioners
Vs.
Sabur Sk. & Anr. - Respondent
S.A 581 of 2008
Decided On : 02-08-2016
For the Petitioners: Mr. Priyabrata Ghosh
For the Respondent: Mr. Parth Pratim Roy, Mr. Dyutiman Banerjee
A partition suit is not maintainable if necessary parties are not joined and the entire property of the co-sharers is not brought into hotchpotch.
Headnote:
PARTITION SUIT - NON-JOINDER OF NECESSARY PARTIES - PARTIAL PARTITION - DEFECTIVE PLAINT - DISMISSAL OF SUIT - VALIDITY OF SOLENAMA DECREE - INTERPRETATION OF DOCUMENTS - SHARE OF CO-SHARERS - HOTCHPOTCH - LEGAL PRINCIPLES
Fact of the Case:
Plaintiffs filed a suit for partition of ancestral property, claiming title through a solenama decree passed in a previous partition suit (Exhibit 4). The defendants contested the suit, alleging that Exhibit 4 was a forged document and that the suit was not maintainable due to non-joinder of necessary parties and failure to bring the entire property into hotchpotch.
Finding of the Court:
The court held that Exhibit 4 was not a valid document as it was obtained by perpetrating fraud on the court. The court also found that the suit was not maintainable due to non-joinder of necessary parties and failure to bring the entire property into hotchpotch.
Issues: 1. Whether the courts below erred in dismissing the suit in its entirety when the specific defense was non-joinder of necessary parties? 2. Whether the courts below erred in dismissing the suit in its entirety without considering the binding effect of the partition decree in subsequent suits? 3. Whether the courts below should have dismissed the suit only on the ground of want of necessary parties?
Ratio Decidendi: 1. The court held that the plaintiffs failed to take steps to amend the plaint to implead necessary parties, such as Ambar Sk or Anis Sk or their legal heirs. 2. The court found that the plaint did not specify the share of each co-sharer, which was essential for determining the validity of the partition. 3. The court held that Exhibit 4 was created by perpetrating fraud on the court and could not be relied upon to establish the plaintiffs' title. 4. The court also found that the suit was not maintainable as the entire property of the co-sharers was not included in the hotchpotch.
Final Decision: The court dismissed the second appeal, upholding the judgments of the lower courts. The court held that the lower courts did not commit any substantial error of law in dismissing the suit in its entirety on the ground of non-joinder of necessary parties.
Indrajit Chatterjee, J.
1. This Court is hearing the Second Appeal as against the judgment and decree passed by the learned Additional District Judge, Kandi, District: Murshidabad, as passed in connection with Title Appeal No. 8 of 2007 on 29-03-2008 wherein the learned First Appellate Court was pleased to confirm the judgement and decree as passed by the learned Civil Judge (Senior Division), Kandi, of the same District as passed in connection with Partition Suit No. 158 of 2001 dated 05-06-2007.
2. The learned courts below was pleased to dismiss the suit on contest as it did not believe the solenama decree passed in connection with Partition Suit No. 64 of 2951 which was marked as Exhibit-4 before the learned Trial Court. The suit was also held to be not maintainable on the ground of partial partition as the entire property of the parties were not brought into hotchpotch of such partition suit. The suit was held to be defective for non-joinder of necessary parties.
3. It was submitted by the bar that Anis Sk. who got the property from Jibas Molla and Ambar Sk. who also purchased the portion of the suit property from that Jibas Molla were necessary parties. It is the admitted position that Anis Sk. and Ambar Sk. purchased the property from Jibas Molla in the year 1938 by a common deed (Exhibit-1).
4. It may be mentioned that R.S. Plot No. 246 measuring 33 decimal and R.S. Plot No. 336 measuring 16 decimal are in dispute. The appellants/plaintiffs claimed that through a decree of partition in connection with Partition Suit No. 64 of 1951 which was decreed in final form as per Solenama (Exhibit-4), Jibas Molla and his mother, Chiyatun Bibi, became the owner of 26 decimal of Plot No. 246 on the southern side and 8 decimal out of 16 decimal of Plot No. 336. The appellants/plaintiffs further claimed in the plaint that Rakhimon Bibi, wife of Jibas Molla, and Rahimon Bibi, i.e. the mother of the defendant as per that decree of compromise got 6 decimal of Plot No. 246 on the eastern side and 8 decimal of Plot No. 336 out of 16 decimal on the same side. After the death of Chiyatun Bibi, her son, Jibas Molla, became the owner of the share of Chiyatun Bibi. It is the claim of the appellants/plaintiffs that Chiyatun Bibi had 1/8th share over Plot No. 246 and the same was her share in respect of Plot No. 336.
5. It was further case of the plaintiffs that Jibas by a Registered Deed No. 111 dated 27-04-1938 sold his entire share to his two brothers, namely, Ambar Sk. and Anis Sk. It is also the claim of the appellants/plaintiffs that Ambar Sk. and Anis Sk. sold half of their shares in those plots to the mother of the plaintiff no.1, Rokia Bibi and to the mother of the plaintiff no.6, Kursia Bibi, as per one deed of sale dated 2nd May, 1953 as per Deed No. 3058 (Exhibit-2). Ambar Sk and Anis Sk, sold their rest portion to Rakhimon Bibi, wife of Jibas. This Rakhimon Bibi got her share as per that Partition Suit of 1951 and when she was the owner and possessor of her share in respect of those plots, she gave her entire share to Abdul Sattar, father of the plaintiff no.6 as per one “Heba-bil iwaz” No.3461. This plaintiff nos.7 to 12 are the legal heirs of Abdul Sattar.
6. Thus, the plaintiffs/appellants claimed before the Trial Court through the plaint that the plaintiffs acquired 42 decimal interest in total in respect of Plot Nos. 246 and 336. The plaintiffs did not divulge in the plaint what was the share of the plaintiffs in respect of those two plots separately.
7. Being denied partition that Title Suit was filed.
8. Out of two defendants, namely, Sabur Sk. and Balirun Bibi, the son and daughter of Rohimun Bibi, only Sabur Sk. contested the suit alleging, inter alia, that the story of compromise in respect of that partition suit is a myth and as such, the claim of title of the plaintiffs by virtue of that compromise decree never cropped up. The defendant no.1 further claimed that the suit was bad for defect of party. The defendant no.1 a
