REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.     8         OF   2009 (Arising out of SLP (C) No. 296 of 2006)

Kartick Chandra Mandal  ……Appellant

Versus

Netai Mondal (dead) by Lrs. and Ors.       ……Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of  the  Calcutta  High  Court  allowing  the  Second  Appeal  filed  by  the

respondents  under Section 100 of the Code of Civil  Procedure,  1908 (in

short the ‘CPC’).  

3. The  appellant  as  plaintiff  filed  a  suit  for  declaration  of  title  and

recovery of khas possession and also of permanent injunction contending

inter-alia  that  the  suit  land in  R.S.  Khatian  No.31  of  Mouza Chandibera

under P.S. Rajarhat originally belonged to Ananda Chandra Mondal, Mubir

Mondal,  Bhutnath  Mondal,  Gadadhar  Mondal,  Mathar  Mondal,  Kartick

Mondal, Haradhan Chandra Ghosh and Bishwanath Ghosh. While they were

in  joint  possession  in  same for  convenience  of  possession  they made an

amicable  partition  amongst  themselves  and  in  that  partition  plaintiff  and

proforma defendant No.3 got 12 decimals of land in plot No.223/455 which

was described in schedule A of the plaint.  Subsequently, by an amicable

partition between the plaintiff and proforma defendant No.3, plaintiff got B

schedule property, that is to say, 6 decimals of land at the southern portion

of the aforesaid suit property and proforma defendant No.3 got 6 decimals

of land at the northern portion of the suit plot. In this way, plaintiff got B

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schedule of land and C schedule of land fell in the share of pro-defendant

no.3. Thereafter, as per the case of the plaintiff by way of an oral exchange,

defendants 1 and 2 got C schedule property from proforma defendant No.3

and they started residing thereon by constructing house. B schedule of land

was lying vacant.  Plaintiff  was in  possession  of  that  land by cultivation.

Defendant  Nos.1 and 2 threatened the possession of  the plaintiff.  In that

background, the plaintiff filed the suit originally for permanent injunction

against defendants 1 and 2. Subsequently, it was contended by the plaintiff

that defendant Nos.1 and 2 dispossessed the plaintiff from the suit property

and,  therefore,  the  plaintiff  prayed  for  recovery  of  possession  of  such

property. Defendant Nos.1 and 2 contested the suit by a written statement

alleging inter-alia that the plaintiff was all along since the date of partition

remained separately in his own allotted land and the defendants also were

possessing  the  land  and  structure  according  to  their  own  share  on  the

portion allotted to them. In this background, they denied the allegation of

dispossession from the suit property made by the plaintiff. It was the further

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allegation  of  the contesting  defendants  that  the total  land were amicably

partitioned amongst themselves by the intervention of the members of the

gram Panchayat as per the family arrangements. The parties were separated

in  respect  of  the  possession  of  the  land  in  dispute  and  the  contesting

defendants after getting the plan sanctioned, constructed the building over

the allotted land. The plaintiff was not entitled to get a decree as prayed for.  

4. Learned  Munsiff  formulated  several  issues  and  relied  on  certified

copy of the decreed suit. The first Appellate Court has also upheld the view

of  the  trial  Court.  The  Second  Appeal  was  admitted  with  the  following

questions of  law:

(i) Whether  the  learned  Judge  in  the  courts  below

substantially  erred  in  law  in  completely  misleading,

misconstruing  and  misappreciating  the  scope  of  the  suit  for

declaration, injunction and recovery of possession between the

co-sharers in the absence of any legal and valid partition and

erroneously decreed the suit on a misconception of law?

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(ii) Whether  the  learned  Judge  in  the  courts  below

substantially erred in law in decreeing the suit by declaring that

the  plaintiff/respondent  No.1  has  right,  title  and  interest  in

respect  of  ‘B’  schedule  suit  property  and  for  recovery  of

possession  of  the  said  property  by  evicting  the  appellants

therefrom inasmuch as the learned Judge in the courts below

have failed to appreciate that all the parties to the proceeding

are  co-sharers  having  joint  share  in  the  suit  property and as

such before valid partition neither of the co-sharers  could be

directed to vacate some portion of the joint property?

(iii) Whether  the  learned  Judge  in  the  courts   below

substantially  erred  in  law  in  dismissing  the  appeal  on  a

misconception of law inasmuch as per the provision of Section

14 of the West Bengal Land Reforms Act, 1955 any partition

among the co-sharers other than by a registered instrument or

by a decree or order of a Court  is  not  partition at all  and in

absence  of  any  valid  partition  among  the  parties,  the

plaintiff/respondent No.1 cannot claim for injunction to prevent

other co-sharers from enjoying joint share in the property.

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5. The  High  Court  answered  question  No.3  in  favour  of  the  present

respondents and it held that the partition, if any,  did not take place prior to

the introduction of Section 14 of the West Bengal Land Reforms Act, 1955

(in short the ‘Act’).  

6. Learned counsel for the appellant submitted that there was no dispute

regarding the date of partition. In fact, no issue was framed. In the plaint

there  was  a  specific  assertion  with  reference  to  the  R.S.R.O.R.  which

undisputedly  is  of  the  year  1955.  Though  the  defendants  filed  written

statement  there  was  no  challenge  to  the  authenticity  of  the  R.S.R.O.R.

Though the High Court noted that there was an admission strangely it came

to hold that the admission was as regards the point of law and, therefore,

decided the appeal in favour of the respondents.  

7. Learned counsel for the respondents, on the other hand, supported the

judgment of the High Court and submitted that though it appeared that there

was no specific issue relating to the date of partition there was denial  as

regards the factum of partition as claimed.  

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8. The High Court noted that the section came into force in West Bengal

w.e.f. 7.6.1965 except in the areas transferred from Bihar to West Bengal.

Therefore, after the introduction of the aforesaid provision the partition of a

holding can be effective only by registered instrument or by decree or order

of a Court. There is no dispute so far as this aspect is concerned. As rightly

contended by learned counsel for the appellant there was specific averments

in  the plaint  as  regards the partition which refers to R.S.R.O.R. Though,

there  was  no  date  of  partition  indicated,  a  reference  was  made  to  the

aforesaid document.  The High Court  after  having noted that  none of  the

parties made any endeavour to ascertain when the actual alleged partition

took  place  came  to  an  abrupt  conclusion  that  from  the  facts  and

circumstances it was clear that the partition, if any, did not take place prior

to the introduction of Section 14 of the Act.  The basis for coming to such a

conclusion  is  not  clear.  Further,  the  conclusion  of  the  High  Court  that

though there may have been admission that related to the question of law is

equally unsustainable.  What is the date of partition is not a question of law.

9. In the circumstances, we set aside the impugned judgment of the High

Court  and remit  the  matter  to  the  trial  Court  to  formulate  the  following

issues:

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What is the date of alleged partition between the plaintiff

and original defendant No.3;

The  parties  shall  be  permitted  to  place  evidence  in

support of their respective stand.  

10. The trial Court shall hear the suit afresh on the aforesaid issue alone

and decide the same in accordance with law. Since the matter is pending

since long, we request the trial Court to dispose of the matter by the end of

May, 2009.  

11. The appeal is allowed to the aforesaid extent.      

……..…………….........................J. (Dr. ARIJIT PASAYAT)

………….…….….........................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, January 6, 2009

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