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IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
H.N. Sarma and Arun Chandra Upadhyay, JJ.
Sri Benoy Bhusan Paul, S/o. Late Bidhu Bushan Paul – Appellants
Vs.
Smti. Jyotsna Paul and 13 Ors. – Respondent
R.F.A. No. 33 of 2003
Decided On: 26.11.2010
Partition - Property Dispute - Criminal Procedure Code - [Section 145, Code of Criminal Procedure, 1973] - [Section 145, Code of Criminal Procedure, 1973] - [Section 145, Code of Criminal Procedure, 1973] - The court discussed the compromise petition filed in the criminal revision petition No. 10/84, which involved the suit property, and the subsequent order disposing of the criminal revision petition. The court found that the compromise was duly acted upon by both parties and that the terms of the compromise were binding. The court also noted that the defendant's attempt to resile from the compromise was not valid, as the compromise had already been acted upon and the defendant was present personally in the High Court when the compromise was made. The court concluded that the appeal was liable to be dismissed and was dismissed accordingly, with all costs in favor of the plaintiffs to be borne by the appellant.
Fact of the Case:
The plaintiffs filed a Title (Partition) Suit No. 49/98, praying for partition of the suit land in equal shares between the plaintiffs and the defendant, who were full blood brothers. The defendant denied the allegations and claimed that the properties were his personal properties. The trial court passed a preliminary decree allowing the partition of the suit land as claimed by the plaintiffs, which was challenged in the present appeal by the defendant.
Finding of the Court:
The court found that the compromise petition filed in the criminal revision petition No. 10/84, involving the suit property, was duly acted upon by both parties and the terms of the compromise were binding. The defendant's attempt to resile from the compromise was not valid, as the compromise had already been acted upon and the defendant was present personally in the High Court when the compromise was made. The court concluded that the appeal was liable to be dismissed and was dismissed accordingly, with all costs in favor of the plaintiffs to be borne by the appellant.
Issues: 1. Is the suit maintainable? 2. Have the plaintiffs right, title and interest over the suit land, if so, what are the respective shares each of the plaintiffs and the defendants in the suit land? 3. Whether the entire joint property has brought in the hotch potch? 4. Are the plaintiffs entitled to get the decree?
Ratio Decidendi: The compromise petition filed in the criminal revision petition No. 10/84, involving the suit property, was duly acted upon by both parties and the terms of the compromise were binding. The defendant's attempt to resile from the compromise was not valid, as the compromise had already been acted upon and the defendant was present personally in the High Court when the compromise was made.
Final Decision: The appeal was dismissed, with all costs in favor of the plaintiffs to be borne by the appellant.
H.N. Sarma, J.
1. This first appeal is directed against the judgment and decree dated 24/6/03 passed by the learned Civil Judge, Sr. Division, No. 1, West Tripura, Agartala in Title (Partition) Suit No. 49/98 thereby decreeing the suit in preliminary form.
2. We have heard Mr. D. Chakraborty, learned Counsel for the Defendant No. 1/Appellant and Mr. AC Bhowmik, learned Counsel for the Plaintiffs/Respondents. Also heard Mr. P. Chakraborty, learned appearing on behalf of Respondent No. 12.
3. The principal Respondents as Plaintiffs instituted the Title (Partition) Suit No. 49/98 in the court of the learned Civil Judge, Sr. Division, West Tripura, Agartala praying for partition of the suit land described in the schedule of the plaint in equal shares between the Plaintiffs on one side and the Defendant No. 1 on the other side in meter and bounds and for separate possession of the respective shares by appointing a Survey Commissioner. The pleaded case of the Plaintiffs inter alia is that the Plaintiff No. 1 is the widow and the Plaintiff Nos. 2 and 3 are sons of Late Phani Bhusan Paul, who expired on 5/1/88. Late Phani Bhusan Paula and the Defendant No. 1 are own brothers. Both of them have acquired the properties involved in the suit by purchasing the same either in the name of Defendant No. 1 or in the name of proforma Respondents or in the name of their mother. In the year 1996, in respect of a dispute regarding possession of the Schedule-B land between the deceased Phani Bhusan Paul and the Defendant No. 1, a proceeding Under Section 145 Code of Criminal Procedure was initiated as MC No. 120/96. In the said proceeding, the possession of the disputed land was declared in favour of the Defendant No. 1 by the learned Magistrate which was challenged before the learned Sessions Judge who reversed the order passed by the Magistrate and the order was further challenged in Criminal Revision Petition No. 10/84 before the High Court. During the pendency of the aforesaid revision petition, a compromise was affected between Late Phani Bhusan Paul and the Defendant No. 1 wherein it was agreed that the properties described in the Schedule-A which are in the joint name or in the individual name shall be divided between the parties in equal share, that the properties described in Schedule-C which are in the name of the mother of the parties shall remain as 3 her absolute properties and that the right over the properties at Motor Stand Road, Agartala would be decided in terms of the decision to be rendered in T.A. No. 4/84 pending in the Court. It is further agreed that in terms of the said settlement all suites, appeals and criminal cases by and between the parties except TA No. 4/84 shall stand withdrawn.
The Plaintiff also pleaded that the mother of Late Phani Bhusan Paul and the Defendant No. 1 having expired in the year 1990, both the two brothers have their equal share in the property described in the Schedule-C, left by their mother.
It is alleged that the Defendant No. 1, in terms of the compromise have not partitioned the suit land in spite of repeated requests made by Late Phani Bhusan Paul and after his death by his legal heirs in spite of approach to that effect on several occasions by the Plaintiffs. The Defendant No. 2 to 9 are close relatives of the Plaintiffs and Defendant No. 1 and some of the suit land were purchased in the name of the proforma Defendants or their predecessor-in-interest but they do not have any right, title and interest over the suit land. The Defendant No. 10 to 12 are the legal heirs of Smt. Renuka Paul and they are sisters and they have not claimed the suit land and accordingly they were impleaded as proforma Defendants in the suit. Pleading in the aforesaid manner, the Plaintiffs prayed for partition of the suit land described in the Schedule claiming 50% share in their favour.
4. Upon receipt of the summon of the suit, none of the Defendants, except Defendant No. 1 had contested the suit by filing writ
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