IMPORTANT POINT
The main legal point established in the judgment is that in the absence of legally enforceable documents, a claim to exclusive ownership of a property cannot be upheld, and the burden of proof lies with the claimant to establish entitlement to a share in property earnings.

JUDGMENT :

Partha Sarathi Chatterjee, J.

1. Legality and propriety of the judgment and decree dated 19th April, 2018 passed by the learned Civil Judge, Senior Division, 2nd Court, Barasat, North 24 Parganas are under challenge in this appeal.

2. By the judgment and decree impugned, the suit for partition was decreed in preliminary form and parties to the suit were declared to be the owners of 1/3rd share each in the suit property and counter-claim filed by the defendant no.1 was dismissed.

3. Capsulated form of the facts leading to this appeal is that plaintiff filed one suit for partition and separate possession in respect of the suit property. Facts depicted in the plaint, in brief, are as follows :

i. One Gopal Chandra Karmakar, since deceased, purchased the suit property from Government of West Bengal by virtue of a registered deed of sale vide. no. 4773 of 1972 and thereafter, Mr. Karmakar constructed a two-storied building thereon;

ii. By virtue of a deed of gift vide. no. 6066 of 1972, the suit property was gifted to Gour Hari Karmakar being the son of the Gopal Chandra Karmakar. Gopal Chandra Karmakar expired on 21.8.1973;

iii. Gour Hari died intestate on 21.12.2010 leaving behind him the plaintiff, defendant no.1 being the two sons and the defendant no.2 being the daughter as his legal heirs and plaintiff claimed himself to be the owner of 1/3rd share of the suit property;

iv. It was contended therein that entire ground floor of the suit property consists of ten rooms with four attached bath and four common latrine having four feet wide common passage and defendant no.1 is running one lodge, namely ‘Santi Lodge’ in six rooms and another lodge, namely ‘Santi Kunja’ in four rooms since 2005 and 1999 respectively and is earning Rs.1,13,500/- per month from the aforesaid two lodges and defendant no.1 is running one hardware business therein and plaintiff claimed himself to be entitled to 1/3rd share of the income coming from the said businesses;

v. Since the plaintiff felt inconvenience to possess and enjoy the suit property which is a joint property, he approached the defendant no.1 to have it partitioned by giving a letter dated 18.08.11 but defendant no.1, in his reply by a letter dated 19.09.2011, claimed himself to be the exclusive owner of the ground and 1st floor of the building on the rear portion of the suit property;

vi. It was specifically claimed that neither did their father nor did he give consent to the defendant no.1 to raise any construction on the rear portion of the suit property and the plaintiff and his father contributed major share of expenses in that construction whereas defendant no.1 incurred a paltry sum for that purpose and even plaintiff lent Rs.2,30,000/- to the defendant no.1 for revival of his business;

vii. However, ultimately, the defendant no.1 refused to effect partition of the suit property and hence, the suit.

4. Defendant no.1 contested the suit by filing written statement along with counter claim. Crux of the case of the defendant no.1 projected therein is as follows :

i. Defendant no.1 constructed two-storied building on rear portion of the suit property with his own fund and with due permission of the original owner, namely, Gour Hari Karmakar and the plaintiff;

ii. Defendant no.1 took loan of Rs. 1.6 lakhs and 2.3 lakhs from his father and the plaintiff respectively to construct two storied building on rear portion of the suit property but he paid back those amounts to them which would be evident from the statement of his bank account;

iii. That the front portion of the suit property was allotted to the plaintiff whereas the rear portion of the suit property was allotted to the defendant no.1 on mutual agreement and since, during the marriage of the defendant no.2 a considerable amount of money was spent, Gour Hari did not allot any share to defendant no.2;

iv. Ultimately, he prayed for declaration that he is the absolute owner of the land and two storied structure on the rear portion of the sui