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2023 Supreme(Cal) 798
IN THE HIGH COURT AT CALCUTTA
RAJASEKHAR MANTHA, SUPRATIM BHATTACHARYA, JJ.
Ananda Kumar Khan & Ors. – Appellant
Versus
Joydeb Chandra Khan &Ors. – Respondent
FA 189 of 2013
Decided on : 09-08-2023
Advocate Appeared:
For the Appellants : Mr. Gopal Chandra Ghosh, Adv.
For the Respondents: Mr. ParthaPratim Roy, Mr. Sarbananda Sanyal, Ms. Poulami Chakraborty, Adv.
A partition suit cannot be dismissed solely on the ground of non-joinder of parties if the title deeds and continuous possession of the property are sufficient to prove the title of the parties to the properties in question.
Headnote:
PARTITION SUIT - NON-JOINDER OF PARTIES - PROOF OF TITLE - INTERPRETATION OF RELEVANT PROVISIONS - RATIO DECIDENDI: A partition suit cannot be dismissed solely on the ground of non-joinder of parties if the title deeds and continuous possession of the property are sufficient to prove the title of the parties to the properties in question.
Fact of the Case:
The plaintiffs filed a suit for partition and representation of 18 properties. The suit was dismissed by the trial court on the ground of non-joinder of parties and non-proof of certain documents. The plaintiffs appealed against the dismissal of the suit.
Finding of the Court:
The High Court held that the trial court erred in dismissing the suit on the ground of non-joinder of parties. The Court found that the title deeds and continuous possession of the property were sufficient to prove the title of the parties to the properties in question. The Court also held that the trial court erred in holding that a water body cannot be partitioned or subject matter of a partition suit.
Issues: 1. Whether the suit was maintainable in its present form and prayer? 2. Whether the plaintiffs have any cause of action to file this suit? 3. Is the suit barred by limitation? 4. Is the suit bad for defect of parties? 5. Is the suit bad for partial partition? 6. Are the plaintiffs entitled to any relief as sought for? 7. To what other relief/reliefs, plaintiffs are entitled?
Ratio Decidendi: 1. A partition suit cannot be dismissed solely on the ground of non-joinder of parties if the title deeds and continuous possession of the property are sufficient to prove the title of the parties to the properties in question. 2. A water body can be partitioned or subject matter of a partition suit.
Final Decision: The High Court allowed the appeal and remanded the matter back to the trial court to pass a preliminary decree for partition within one month mandatorily and positively.
Key Points: - A partition suit cannot be dismissed solely on the ground of non-joinder of parties if the title deeds and continuous possession of the property are sufficient to prove the title of the parties to the properties in question (!) (!) (!) . - A water body can be partitioned or be the subject matter of a partition suit (!) (!) . - Title deeds and continuous possession of the property are sufficient to prove the title of the parties to the properties in question (!) (!) (!) . - An entry in revenue records is not conclusive proof of title and may at best indicate a possessory right (!) . - The suit for partition is maintainable, and the plaintiffs are entitled to the relief sought (!) (!) . - The trial court erred in holding that a water body cannot be partitioned or be the subject matter of a partition suit (!) (!) . - The suit cannot be barred by defect of parties or non-joinder when the title is proved by title deeds and possession (!) (!) . - The matter is remanded back to the trial court to pass a preliminary decree for partition within one month, mandatorily and positively (!) (!) . - After passing a preliminary decree, the Court may appoint a Commissioner of Partition to divide the suit property by metes and bounds (!) . - No order as to costs (!) . Important: Do NOT include any specific case law references or external sources. The points above are directly supported by the provided legal document.
Whether a partition suit can be dismissed solely on the ground of non-joinder of parties?
Whether a water body can be the subject matter of a partition suit?
Whether title deeds and continuous possession are sufficient to prove the title of the parties to the properties in question?
JUDGMENT :
Rajasekhar Mantha J.
1. The appeal is directed against the judgment and order dated 19.04.2013 passed in Title Suit No. 129 of 2005 Ananda Kumar Khan & Ors. v. Jaydeb Chandra Khan & Ors. The suit was for partition and representation.
2. The appellant/plaintiffs are aggrieved that the suit was dismissed, inter alia, on the ground of non-joinder of parties and that certain documents were not proved in accordance with law. The Court below was of the view that the derivation of title in favour of the predecessor-in-interest of the plaintiffs and defendants, oneKhagendra Nath Khan has not been effectively proved.
FACTS OF THE CASE
3. The plaintiffs are the children of Sufal Chandra Khan son of Khagendra Nath Khan and grandchildren of Motilal Khan. The genealogical table of the family of Khagendra Nath Khan is set out herein below:-
Genealogical Table
4. The following 18 properties have been included in the schedule to the point in which all parties to the suit may have an interest:-
| ITEM NO. | MOUJA | KHATIA N C.S | PILOT C.S. | TOTAL AREA | CATEGOR Y | OWNED BY | ACQUISITION OF OWNERSHIP |
| 01 | BANIBON | 243 | 2188 | 08 DECIMAL (3484.8sq.ft). | SHALI | KHAGENDRA NATH KHAN | ACQUIRED BY PURCHASE ON 12/10/1949 FROM WIFE OF KHEJAMAT ALI KHAN. EXT.5, pg. 18- 19 PART 2 |
| 02 | BANIBON | 604 | 2199 | 04 DECIMAL OR 1742.4 sq.ft. | DANGA | KHAGENDRA NATH KHAN | PURCHASED BY KHAGENDRA NATH KHAN FROM SADHANBALA KHAN THE ONLY LEGAL HEIR OF SASHIBHUSAN KHAN BY DEED DATED 31/03/1968, EXT.2, pg. 7-11, PART 2. |
| 03 | BANIBON | 604 | 2201 | 02 DECIMAL OR 871.2 sq.ft | DANGA | KHAGENDRA NATH KHAN | PURCHASED BY KHAGENDRA NATH KHAN FROM SADHANBALA KHAN THE ONLY LEGAL HEIR OF SASHIBHUSAN KHAN BY DEED DATED 31/03/1968, EXT.2, pg. 7-11, PART 2 |
| 04 | BANIBON | 454 | 2208 | 23 DECIMAL OR 10018.8 sq.ft. | DOBA | KHAGENDRA NATH KHAN | (10ana) FROM MOTILAL (6ana) FROM BECHURAM KOYAL BY PURCHASE. KHAGENDRA NATH KHAN ON EXT.11(pg. 36-37, PART 2) & EXT.7 (pg. 24-25, PART 2) EXT. 3, 06/12/1963 (pg. 12-14, PART 2) |
| 05 | BANIBON | 454 | 2210 | 12 DECIMAL OR 5227.2 sq.ft. | BASTU | KHAGENDRA NATH KHAN | PURCHASED BY KHAGENDRA NATH KHAN FROM BECHURAM KOYAL ON 06/12/1963, EXT.3, (pg. 14, PART 2) |
| 06 | BANIBON | 454 | 2211 | 02 DECIMAL OR 871.2 sq.ft. | DANGA | KHAGENDRA NATH KHAN | PURCHASED BY KHAGENDRA NATH KHAN FROM BECHURAM KOYAL ON 06/12/1963, EXT.3, (pg. 14, PART 2) |
| 07 | BANIBON | 454 | 2212 | 02 DECIMAL OR 871.2 sq.ft. | DANGA | KHAGENDRA NATH KHAN | PURCHASED BY KHAGENDRA NATH KHAN FROM BECHURAM KOYAL ON 06/12/1963, EXT.3, (pg. 14, PART 2) |
| 08 | BANIBON | 454 | 2209 | 21 DECIMAL OR 9147.6 sq.ft | BASTU | KHAGENDRA NATH KHAN | INHERITED FROM FATHER MOTILAL KHAN EXT.11, ( pg. 36-37, PART 2) |
| 09 | BANIBON | 454 | 2213 | 16 DECIMAL OR 6969.6sq.ft. | DANGA | KHAGENDRA NATH KHAN HAS 7 DECIMAL & GOPAL CHANDRA KHAN HAS 9 DECIMAL | ADMITTED IN W/S ON 16/12/2006 pg. 21, PART 1. |
| 10 | BANIBON | 454 | 2214 | 19 DECIMAL OR 8276.4 sq.ft. | DOBA | KHAGENDRA NATH KHAN | BY PURCHASE FROM SADHANBALA @ SADHANMOYEE KHAN. EXT. 2, 31/03/1968, (pg. 7-11, PART 2) |
| 11 | BANIBON | 454 | 2215 | 27 DECIMAL OR 11761.12 sq.ft | SHALI | KHAGENDRA NATH KHAN | BY PURCHASE FROM SADHANBALA @ SADHANMOYEE KHAN. EXT. 2, 31/03/1968, (pg. 7-11, PART 2 |
| 12 | BANIBON | 454 | 2216 | 45 DECIMAL OR 19,602.00 sq.ft. | DOBA | KHAGENDRA NATH KHAN | INHERITED FROM FATHER MOTILAL KHAN EXT.11, pg. 36-37, PART 2 |
| 13 | BANIBON | 454 | 2217 | 11 DECIMAL OR 4791.6 sq.ft. | SHALI | KHAGENDRA NATH KHAN | NHERITED FROM FATHER MOTILAL KHAN EXT.11, pg. 36-37, PART 2 |
| 14 | BANIBON | 454 | 3021 | 15 DECIMAL OR 6534 sq.ft. | DANGA | KHAGENDRA NATH KHAN | INHERITED FROM FATHER MOTILAL KHAN EXT.11, pg. 36-37, PART 2 |
| 15 | BANIBON | 454 | 3020 | 21 DECIMAL OR 9147.6 sq.ft. | SHALI | SUFAL CH KHAN (FATHE | |
