Section 44 of the Transfer of Property Act protects the privacy of an undivided family dwelling house by denying a stranger purchaser the right to joint possession or common enjoyment of the house.

Sahidullah Munshi, J.

This second appeal by the defendant is against the judgment and decree dated 30th August 1985 passed by the learned Additional District Judge, 1st Court, Medinipur in Title Appeal No. 304 of 1984 affirming those dated 28th May 1984 passed by the learned Munsif, 1st Court at Tamluk in Title Suit No. 126 of 1981. The Second Appeal was admitted on 5th May 1987 at the time of admission. It was neither indicated as to what are the grounds containing question of law on which the appeal would be heard, nor was there any formulation of substantial question of law involved in this appeal. Accordingly, when this appeal was taken up for hearing by this court on 12th June 2018 the only substantial question of law which was formulated is as follows. "Whether the courts below substantial erred in law in holding that in the facts and circumstances of the case under Section 44 of the Transfer of Property Act has been rightly applied or not?.

2. The short background of the case filed by the plaintiff is that suit plot No. 1483 and non suit plot No.1470 and 1471 comprises undivided family dwelling house. One Iswar Prasad and his niece Janaki Mayee Dasi having equal share in the said bastu block which was recorded accordingly in the C.S. Record-of-Rights only in the possessory column of the C.S. Record-of-Rights. Two suit plots namely, Plot No. 1483 and 1484 were erroneously shown to be in the exclusive possession of Iswar Das while the other two non suit plots namely, plot no. 1470 and 1471 were shown in the exclusive possession of Janaki Mayee Dasi. Despite such erroneous entry in the C.S. Record-of-Right both Iswar and Janaki had been possessing the said four plots jointly as their undivided family dwelling house. Janaki Mayee Das transferred her half share in the undivided family dwelling house in favour of his son Nidhi Krishna Das, the plaintiff herein by a deed of gift dated 29th September, 1951. The deed writer inadvertently mentioned only two plots that is plot nos. 1470 and 1471 instead of four plots. Iswar Das died and his share devolved upon his widow Ambika Bala Dasi. The plaintiff and Ambika Bala had joint possession over the undivided dwelling house. There was no partition between them by metes and bounds. Ambika had her dwelling house on plot no. 1483 and the plaintiff had his house on plot no.1 1471. There was a doba within the bastu block which situates on plot no. 1484. The non-suit plot No. 1470 was a dhosa land and the same all along was used as a courtyard of the undivided dwelling house. According to the plaintiff the defendant threatened to dispossess plaintiff from the suit plots on 1484 and disclosed that he had purchased the suit plots from Radha Kanta Bera and others and that is the cause for this suit. On enquiry the plaintiff came to learn that Ambika Bala made a deed in favour of Radha Kanta bera and others in 1961. Despite that deed Kamala Kanta and others never got possession of the suit plots and then could not pass any valid title to the defendant by the sale deed of 9th February, 1979. It is the specific case that the suit plots are part and parcel of the undivided dwelling house of the plaintiff and the defendant is a stranger purchaser claims joint possession over the suit plots. And if such joint possession is allowed the same will destroy the family privacy of the plaintiff. It is further case of the plaintiff that the defendant/stranger cannot posses the suit plots without regular partition by metes and bounds. Therefore, the plaintiff filed the suit for declaration that the two suit plots are part and parcel of the undivided family dwelling house and accordingly sought for permanent injunction restraining the defendant from possessing the suit plots jointly with other co-sharers including the plaintiff till regular partition by mates and bounds is made.

3. The suit has been contested by the defendant/Bijoy Krishna Das by filing written statement denying all material allegatio