IMPORTANT POINT
The judgment establishes the principle that the dismissal of a civil proceeding under Section 8 of the West Bengal Land Reforms Act does not extinguish the right, title, and interest of a co-sharer in a joint property.

JUDGMENT :

The Court:

Re: CAN 1 of 2023.

1. This is an application for condonation of delay in preferring the instant appeal beyond the period of limitation provided therefor.

2. After perusing the averments made in the instant application and upon hearing the respective Counsels, we are satisfied that the appellants were prevented by sufficient cause in not preferring the instant appeal within the statutory period of limitation.

3. Accordingly, the application for condonation of delay being CAN 1 of 2023 is allowed. The delay in preferring the instant appeal is hereby condoned.

4. The office is directed to formally register the appeal.

5. By the consent of the parties, the appeal is taken up for hearing.

6. It is really a sordid state of affairs that the dispute, which is purely of civil nature, is sought to be entertained exercising the jurisdiction under Article 226 of the Constitution of India and activating the Police Administration in achieving something, which can only be perceived in a civil proceeding.

7. Indubitably, the property is conjointly owned by the appellants as well as the writ petitioner/respondent. There appears a dissent on the possession as the writ petitioner/respondent claimed an exclusive possession in respect of a portion occupied by her, whereas the appellants contend that the larger property has not been partitioned by metes and bounds and, therefore, the possession of a co-sharer in respect of a joint property is the possession not only in commensurate with the share held by either of the parties but on behalf of the other co-sharers.

8. We do not find any quarrel to such fundamental principles relating to the rights of the co-sharers in respect of a joint property. We are also not unmindful of the fact that a co-sharer can claim an exclusive right and the possession provided he pleads an ouster. We do not find that any civil proceeding has been lodged relating to a claim by the writ petitioner/respondent for an exclusive right in respect of a portion occupied by her.

9. A writ petition came to be filed for issuance of the Mandamus upon the respondent authorities to take suitable and appropriate measures on the basis of the complaint lodged by the writ petitioner/respondent.

10. In course of hearing, it appears from the stand of the writ petitioner/respondent that the building materials stacked at the property for the purpose of construction have been damaged and/or diminished by the act of the appellants for which the complaint was lodged, which was subsequently registered as First Information Report and the Police has also submitted the charge-sheet.

11. So far as the prayer (a) is concerned, we do not find that the learned Single Judge has passed any direction in this regard in the impugned order, which it could have been passed provided the Court is satisfied that the respondent authorities have failed to discharge their duties and/or reluctant to take further steps in this regard.

12. The order impugned relates to a direction upon the Police Authorities to render all necessary assistance to ensure that the writ petitioner/respondent is able to effect construction on her property. What could be perceived from the ultimate direction passed in the impugned order that the Single Bench was apprised of the fact that a civil proceeding filed by the appellants ended in dismissal and an appeal therefrom was also dismissed. There is no reflection in the impugned order on the nature of the civil proceeding initiated by the appellants in respect of the said property.

13. However, in course of the arguments, both the Counsels are ad idem on the fact that the expression “civil proceeding” connotes a proceeding initiated under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as ‘said Act’), which was dismissed by the Trial Court. The provisions contained under Section 8 of the said Act postulate that in the event a co-sharer transfers the portion or share in respect of a plot of land to a third