IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Before:

The Hon’ble Justice Soumen Sen

and

The Hon’ble Justice Apurba Sinha Ray

FAT No. 310 of 2012 Sri Dilip Saha & Anr.

Vs.

Smt. Pratima Biswas & Ors.

For the Appellants : Mr. Partha Sarathi Bhattacharyya, Sr. Adv.,

Mr. Raju Bhattacharyya, Adv.

For the Respondents : Mr. Ramkrishna Bhattacharyya, Adv.

Mr. Kaushik Choudhury, Adv.

CAV On : 06.08.2025 Judgment On : 18.08.2025

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 7/12^th 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 plaintiff but the Learned Trial Court did not take into consideration such matters. The appellants are bona fide purchasers of the property from Pratima Sarkar, the erstwhile defendant no. 3 and they cannot be penalized by the decree of partition and the rights of appellants as purchasers should not be altered since the appellants purchased the property in good faith by a registered sale deed and since then they have been possessing the said properties since their purchase. All these aspects were not properly considered by the Learned Trial Judge. After the death of Benu Sarkar, Pratima Sarkar being the wife of Benu Sarkar inherited the said property and thereafter she sold the entire property to Dilip Saha but this aspect was also not taking into consideration.

2. The plaintiff/respondent has submitted the judgment under appeal is well reasoned and does not call for any interference. It is also submitted that a subsequent purchaser has no right, authority and jurisdiction to raise any defence beyond his/her deed. However, in this case, the deed allegedly executed by Pratima Sarkar is not acceptable since the said Pratima Sarkar sold the property showing her as the only owner of the suit property after suppressing the fact that there are other co-sharers of the said property. There is no dispute that the plaintiff is entitled to get 7/12^th share of the suit property during the lifetime of Pratima Sarkar and after her death the plaintiff is entitled for the entire share of the suit property since Pratima Sarkar and her husband died issueless and excepting the plaintiff there is no other legal heir of the said Pratima Sarkar being the defendant no. 3. Therefore, the said deed of transfer so executed by the defendant no. 3 in favour of the defendant nos. 1 and 2 is an invalid deed. As the appellant nos. 1 and 2 are subsequent purchasers, they cannot claim that other co- sharers of other properties of the original owner Nikhil Chandra Sarkar should be arrayed in this suit for partition. According to the learned counsel of the plaintiffs/respondents as the appellant nos. 1 and 2 are subsequent purchasers and are not their relatives in any way, there is no scope for agitating the said issue on the part of the appellant nos. 1 and 2. According to the learned counsel of the respondent no. 1 the appellants have failed to make out any valid case