Dismissed

Champa Das v. Latika Das

Calcutta HC10 Nov 2021SAT/52/2021

Case brief

AI extract

What is this about?

The Supreme Court dismissed the appeal in a partition suit. The appellate court had set aside the lower court's decree due to non-joinder of co-owners regarding specific land plots. The Court held that since parties admitted joint ownership of the remaining portions of the plots, the suit was not maintainable as partial partition is impermissible. The appeal was dismissed, but the appellant is per

What did the court decide?

The appeal and the connected application filed by the appellant are dismissed with liberty to file a fresh suit after impleading co-owners.

Champa Das Vs Latika Das — Partition | Calcutta HC (2021)

¶1

19 10.11.2021 sdas/rrc

¶2

SAT 52 of 2021 with CAN 1 of 2021 (Smt. Champa Das Vs. Smt. Latika Das)

¶3

Mr. Tulsidas Roy Ms. Bandana Das Mondal …..For the appellant

¶4

Mr. Sudrashan Ghosh

¶5

…..For the respondent

¶6

This appeal is directed against the judgment dated 6^th February, 2017 and decree dated 3^rd March, 2017 in Title Appeal No. 05 of 2017 passed by the leaned Additional District & Sessions Judge, Baruipur, South 24 Parganas whereby the appellate court set aside the judgment dated 6^th February, 2017 and preliminary decree dated 3^rd March, 2017 in Title Suit No. 194 of 2011 on the ground of non-joinder of parties. The appellant/plaintiff had filed a suit for partition with regard to ‘ka’ and ‘kha’ schedule properties. The appellant/plaintiff contended that the appellant/plaintiff and the defendant/respondent became co-owners of the suit property in execution of two sale deeds registered on 12^th February, 2002 and 5^th April, 2004 respectively. Since purchase, the properties are in their possession.

¶7

The ‘ka’ schedule property of the plaint comprises of Dag No. 5069 measuring 23 decimals out of 36 decimals (Pond), Dag No. 5083 measuring18 decimals (Pond), Dag No. 5082 measuring 3 decimals out of 6 decimals

¶8

¶9

(bagan), Dag No. 5084 measuring 19 decimals (danga), Dag No 5085 measuring 3 decimals (danga), Dag No. 5086 measuring 11 decimals (pond); while ‘kha’ schedule of the plaint comprises of Dag No. 5061 measuring more or less16 decimals out of 68 decimals (bagan).

¶10

The defendant/respondent contested the suit, inter alia , on the ground that all the co-owners in respect of the Dag Nos. 5069, 5082 and 5061 had not been made parties in the partition suit. Though the trial court held that there was jointness in the suit property with other co-sharers, it proceeded to pass a preliminary decree of 50:50 share in respect of the ‘ka’ and ‘kha’ schedule property on the premise that the co-shares, if any, may be impleaded as necessary parties at the subsequent stage of the suit before the final decree. In appeal, the appellate court set aside the judgment and decree on the ground that the trial court had erred in holding that the suit was maintainable without adding the co-sharers as necessary parties.

¶11

Learned counsel appearing for the appellant/plaintiff argues that the suit properties were fully demarcated and conveyed to the parties by the erstwhile owners. Hence, there was no question of adding the co-sharers in Dag Nos. 5069, 5082 and 5061 for disposal of the suit.

¶12

On the other hand, the learned counsel appearing for the respondent/defendant/caveator argues that both the courts below came to a finding that there was a jointness

¶13

¶14

in respect of the suit property comprised in Dag Nos. 5069, 5082 and 5061 and the appellant/plaintiff in cross-examination had also admitted that he did not make others parties in the suit. Thus, no interference is called for.

¶15

We have considered the rival submissions of the parties. The suit was filed for partition in respect of ‘ka’ and ‘kha’ schedule properties. Admittedly, there are coowners in Dag Nos. 5069, 5082 in ‘ka’ schedule property and Dag No. 5061 in ‘kha’ schedule property.

¶16

It is argued in view of specific demarcation of the said plots conveyed to the appellant/plaintiff and the defendant/respondent by the erstwhile owners, other cosharers need not be made parties in the suit. We are unable to accept such contention as there cannot be any partial partition of a plot of land. Both the courts below have held that there is jointness in the suit properties comprised in the aforesaid Dag Nos. Furthermore, the appellant/plaintiff himself admitted that he had not added other persons to the suit during his crossexamination. Hence, the suit for partition was clearly not maintainable for non-joinder of co-owners of other portions of land comprised in Dag Nos. 5069, 5082 and 5061.

¶17

Thus, we do not find any substantial question of law arising in the present case so as to admit the appeal. Accordingly, the appeal is dismissed.

¶18

¶19

We, however, observe that the dismissal of the appeal will not debar the appellant/plaintiff from filing the suit for partition after adding the co-sharers in the aforesaid Dag Nos. as necessary parties. Learned Counsel for the appellant/plaintiff submits that his client is unaware of the names and other particulars of the co-sharers and the defendant/respondent inspite of knowledge is not disclosed such particulars. If so, it shall be open to the appellant/plaintiff to issue notice upon the defendant/respondent and the latter upon receipt of such notice shall supply the names and other particulars of the co-sharers to the appellant/plaintiff for the purpose of institution of a fresh suit in accordance with law.

¶20

Since the appeal is dismissed, the connected application being CAN 1 of 2021 is also dismissed.

¶21

All parties shall act upon the server copy of this order duly downloaded from the official website of this Court.

¶22

(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)

Champa Das v. Latika Das

Case brief

What is this about?

What did the court decide?

Champa Das v. Latika Das

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Jiban Barman Vs State of West Bengal

Sikha Mistry Vs State of West Bengal

Swapan Bhowal & Ors. Vs State of West Bengal

Tarun Kuamr Sur Vs Sunil Kumar Jana

Smriti Lekha Das and Anr. Vs Acharjee Para Residents Repd. by Rita Biswas and Ors.

Burn Standard Co. Ltd. Vs Sudhansu @ Sudhangshu Roy & Ors.