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IN THE HIGH COURT AT CALCUTTA
Soumen Sen, Apurba Sinha Ray
Dilip Saha – Appellant
Versus
Pratima Biswas – Respondent
JUDGMENT :
Apurba Sinha Ray, J.
1. Being aggrieved by and dissatisfied with the judgment and decree dated 31.03.2012 passed by the Learned Civil Judge, Senior Division, Raiganj, Uttar Dinajpur in Partition Suit No. 20 of 2008 the appellants have preferred the present appeal on the grounds, inter alia, the share of the respective parties in the suit for partition had not been taken into consideration and had not been included in the schedule of the property. Further, the property comprised in Khatian No. 1233, R.S Plot No. 2524 of Mouza – Mohanbati was not brought into common hotchpots. The declaration of the plaintiff’s share in the property to the extent of 7/12th is erroneous and cannot be sustained. Other co-sharers who are entitled to share in the property by inheritance had not been made party in the suit for partition. Therefore, the suit is not maintainable for non-impleadment of necessary parties. Moreover, some of the properties of the original owner Nikhil Chandra Sarkar had not been taken into consideration in calculating the share of the plaintiff in connection with the aforesaid partition suit, and, therefore, inevitably there will be an alteration of share of the plain
Purchasers cannot claim more than what their transferor legally owns; a property can only be sold according to rightful ownership, ensuring correct partition among heirs.
In partition suits, absence of necessary parties is not fatal if no prior direction was given to join them, emphasizing the importance of pleadings in judicial processes.
Joint ownership claims persist until partition; rights in a partition suit are not bound by limitation, and the burden to prove legal necessity for property transfer lies with the transferee.
A party seeking partition must challenge the validity of prior transactions affecting the property and cannot seek partition of property that has been sold and is in the possession of third parties w....
Bona fide purchasers must act in good faith and with reasonable inquiry to gain protection under ownership claims; mere ignorance of actual ownership is not sufficient.
The burden of proof lies with the plaintiff to establish a property as benami, which was not satisfied in this case.
The main legal point established in the judgment is that the burden of proof lies on the party claiming a prior partition, and in the absence of documentary evidence, unchallenged evidence of the opp....
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