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IN THE HIGH COURT OF CALCUTTA
Biswajit Basu, J.
Balaichand Sau and Others - Appellants
Versus
Brindaban Dasadhikari and Others – Respondents
Civil Order No. 3521 of 2017, 3513 of 2017
Decided On : 14-08-2019
Transfer of Property Act - Co-ownership - Section 44
Fact of the Case:
The plaintiffs sought a declaration of their share in a property and injunction against the defendant. The trial judge dismissed their applications, and the appeal court upheld the decision. The plaintiffs filed revisional applications against the judgment and order.
Finding of the Court:
The court found that the plaintiffs failed to establish the existence of a dwelling-house belonging to the undivided family, a requirement under Section 44 of the Transfer of Property Act, 1882, and therefore, their claim for injunction was dismissed.
Issues: The main issue was whether the plaintiffs were entitled to the benefit of the second paragraph of Section 44 of the Transfer of Property Act, 1882, based on the existence of a dwelling-house belonging to the undivided family.
Ratio Decidendi: The court held that the plaintiffs failed to demonstrate the existence of a dwelling-house belonging to the undivided family, as required by Section 44 of the Act, and therefore, their claim for injunction was not maintainable.
Final Decision: The court dismissed the revisional applications and upheld the lower court's judgment and order, stating that the order did not call for any interference.
JUDGMENT :
Biswajit Basu, J.
The plaintiffs of Title Suit No. 56 of 2013 are the petitioner of both the revisional applications. The petitioners in the said suit have prayed for decree of declaration of their 1/3rd undivided share in the suit schedule bastu 'Ka' property with a further declaration that defendant no. 1 is a stranger transferee. The plaintiffs in the said suit have further prayed for a decree of permanent injunction restraining the defendants from entering into the suit property by dispossessing the plaintiffs and without effecting partition of the suit property.
2. In the said suit the plaintiffs on December 12, 2013 filed an application for injunction restraining the defendant no. 1 from entering into the suit property and from making any construction therein. The plaintiffs on March 26, 2013 filed another application in the said suit for mandatory injunction thereby praying demolition of the structure allegedly constructed by the opposite party no. 1 between the period of February 19, 2013 to February 22, 2013. The learned Trial Judge heard the said two applications analogously and dismissed both the applications by the Order No. 28 dated April 22, 2015.
3. The plaintiffs being aggrieved by and dissatisfied with the said judgment and order of the learned Trial Judge filed two separate miscellaneous appeals. The Misc. Appeal No. 08 of 2015 was directed against the dismissal of the application filed by the petitioners for mandatory injunction and Misc. Appeal No. 09 of 2015 which was directed against the order dismissing application filed by the petitioners for prohibitory injunction.
4. The Appeal Court below also heard the said two Misc. Appeals analogously and by the impugned judgment and order dated March 28, 2017 has dismissed both the appeals. C.O. No. 3513 of 2017 is directed against the said judgment and order dismissing Misc. Appeal No. 09 of 2015 and C.O. No. 3521 of 2017 is directed against the part of the said judgment and order dismissing the Misc. Appeal No. 08 of 2015.
5. Mr. Sahu, learned counsel appearing on behalf of the petitioners fairly submits that the petitioners in the appeal Court below did not press their prayer for mandatory injunction. In view of such stand of the petitioners before the appeal Court below C.O. No. 3521 of 2017 is dismissed as not maintainable.
6. Mr. Sahu, learned counsel appearing on behalf of the petitioners submits that the suit property since is a 'Bastu' land and the defendant no. 1 being a stranger to the family of the plaintiffs is not entitled to the joint possession of the suit property as Section 44 of the Transfer of Property Act, 1882(hereinafter referred to as 'the said Act of 1882' in short) prohibits such joint possession. Mr. Sahu, to elaborate the ambit and scope of the second paragraph of the said Act of 1882 places reliance on the following judicial precedents of the Supreme Court as well as of different High Courts including this Court:-
1. KSHIRODE CHUNDER GHOSAL AND ANOTHER VS. SARODA PROSAD MITRA reported in 12 CALCUTTA LAW JOURNAL 525
2. LAL BEHARI SAMANTA AND OTHERS VS. GOURHARI DAWN reported in 54 C.W.N. 912
3. BOTO KRISHNA GHOSE VS. AKHOY KUMAR GHOSE AND OTHERS reported in A.I.R. (37) 1950 CALCUTTA 111
4. UDAYANATH SAHU VS. RATNAKAR BEJ AND OTHERS, 1967 AIR(Ori) 139
5. BHIM SINGH AND ANOTHER VS. RATNAKAR SINGH AND OTHERS, 1971 AIR(Ori) 198
6. SRI SURENDRA NATH ACHAR AND ANOTHER VS. SRI RAM CHANDRA AND OTHERS, 75 C.W.N. 195
7. NIL KAMAL BHATTACHARJYA AND ANOTHER VS. KAMAKSHYA CHARAN BHATTACHARJYA AND ANOTHER, 1982 AIR(Cal) 539
8. DORAB CAWASJI WARDEN VS. COOMI SORAB WARDEN ANOTHERS, 1990 2 SCC 117
9. NARASHIMAHA MURTHY VS. SUSHEELABAI (SMT) AND OTHERS, 1996 3 SCC 644
10. GHANTESHER GHOSH VS. MADAN MOHAN GHOSH AND OTHERS, 1997 AIR(SC) 471
11. ANIL KUMAR MITRA MODAK AND OTHERS VS. TAPAN KUMAR MITRA MODAK AND OTHERS, 2002 2 CalHN 539.
7. Mr. Mukherjee, learned counsel appearing on behalf of the defendant/opposite party no. 1 submits that to attract the second par
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