Quashed

Bishnupada Ghosh in Place of Nanda Dulal Ghosh(Since Deceased) and Ors. v. Prabhat Kr. Ghosh and Ors.

Calcutta HC14 Mar 2023FA/129/2009

Case brief

AI extract

What is this about?

The Court set aside the impugned decree in a partition suit. It held that additional undisclosed properties made disclosure necessary for fair adjudication. The Court directed the trial court to hear the suit afresh upon amendment of the plaint within five weeks.

What did the court decide?

The impugned judgment was set aside; the trial court directed to hear the suit afresh subject to amendment of the plaint within five weeks; appeal disposed.

Bishnupada Ghosh in Place of Nanda Dulal Ghosh(Since Deceased)… — Partition | Calcutta HC (2023)

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Item-8. 14-03-2023

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sg Ct. 8

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FA 129 of 2009 CAN 3 of 2015 (old CAN 2690 of 2015)

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Nanda Dulal Ghosh, since deceased, Represented by Bishnupada Ghosh & Ors. Versus Prabhat Kumar Ghosh

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Mr. Tapas Kr. Majumder, Adv. …for the appellants Mr. Partha Pratim Roy, Adv. Mr. Anirban Das, Adv. …for the respondent

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The appeal is heard along with the application for additional evidence.

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The explanation offered for not being able to produce the additional evidence at the time of trial, is accepted.

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In any event, we feel that the documents disclosed are relevant for the purpose of proper adjudication of the disputes between the parties. We have also taken into consideration the nature of the dispute between the parties. The impugned decree was passed in a suit for partition. The documents that are now being produced are in relation to Bishnukhanda mouza and Sundipur mouza.

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The learned Counsel for the appellants submits that in the title suit, the respondent filed an application dated 12^th December, 2003 without disclosing the entire properties under Bishnukhanda Mouza and Sundipur Mouza. The original owners of the said properties are Satya Kinkar Ghosh and Satya Pada Ghosh, sons of Late Kedarnath Ghosh. It is claimed that under the said Mouzas the plaintiff and the defendant have sold out the land being Khatian no. 327, Dag No. 1139 and 1221 instead of 1121 measuring about 41 decimals (8 annas share) to other persons. It is

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also stated that the legal heirs of the defendant had also sold out properties under the said Mouzas, Khatian Nos. 192, 10, 197, 19, Plot Nos. 972, 1026, 647, 767 measuring about 70 satak. The sale deeds are now disclosed in this proceeding.

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The plaintiffs claimed that the plaintiffs and defendant had inherited the suit property left by their father Satya Kinkar Ghosh and both the parties have sold their respective shares to different persons under Sundipur Mouza, J.L. No. 44, Khatian No. 245, which they secured on amicable partition. The particulars of lands that have been sold out by the both parties as claimed are:-

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Plot Nos.	Class	Total Quantity
547/793	Shali	36 satak
245	”	43 satak
265	”	15 satak
256	“	50 satak
366	DWO	50 satak
83	Sali	51 satak
240	“	49 satak

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It is stated that Satya Kinkar Ghosh and Satyapada Ghosh as the legal heirs of Kedarnath Ghosh (since deceased) are the joint owners of the said ejmali lands and they are in possession by amicable settlement under mouza-Bishnukhanda Khanti No. 327, J.L. No. 45, P.S. Parui but major portion of lands are vested to state and remaining portion of lands retained in favour of Satya Kinkar Ghosh and Satya Pada Ghosh. The particulars of lands

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are:-

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Dag Nos.	Class	Total Quant	ity Remarks
469	Viti	07 satak	Abandoned
838	Sali	29 satak	Satyapada Ghosh is in possession
918	“	04 satak	“
987	“	14 satak	“
586	“	27 satak	“
561	DWO	11 satak	“
579	Sali	10 satak	“
583	“	53 satak	“
668	“	13 satak	“
707	“	29 satak	“
711	“	26 satak	“
777	“	24 satak	“
803	“	15 satak	“
1017	“	14 satak	“
888	“	24 satak	“
1122	“	8 satak	“

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Some of the lands are vested in the State under Mouza Bishnukhanda as would revealed from the petition filed by the defendant on 12.12.2003 before the learned Court below in the said Title Suit. The particulars of such lands:-

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Khatian No. Dag Nos	Class	Total Quantity
327 701	Sali	25 satak out of 50 satak
902	“	10 satak out of 20 satak
914	“	06 satak out of 13 satak
981	“	05 satak out of 09 satak
1031	“	18 satak out of 37 satak

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1117 “	6 satak out of 12 satak
1185 “	03 satak out of 06 satak
1205 “	07 satak out of 14 satak
819 DWO	08 satak out of 16 satak
1082 Sali	13 satak out of 25 satak
719 “	05 satak out of 10 satak

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It is claimed that the erstwhile land owner Kedarnath Ghosh died leaving behind his two sons, one of the sons, Satyapada Ghosh died leaving behind his 5 (five) sons and 5(five) daughters as his legal heirs and their names are:-

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a) Kiriti Ghosh, son of Late Satyapada Ghosh, of Bandhogora, P.O. Bolpur, District Birbhum, Pin. 731204.

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b) Santosh Kumar Ghosh, son of Late Satyapada Ghosh, of Vill. & P.O. Bishnukhanda, P.S. Parui, District Birbhum, Pin. 731236.

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c) Uttam Kumar Ghosh, son of Late Satyapada Ghosh, of Vill. & P.O. Bishnukhanda, P.S. Parui, District Birbhum, Pin. 731236.

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d) Anup Kumar Ghosh, son of Late Satyapada Ghosh, of Vill. Jambuni, P.O. Bolpur, District Birbhum, Pin. 731204.

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e) Susanto Kumar Ghosh, son of Late Satyapada Ghosh, of Vill. Jambuni, P.O. Bolpur, District Birbhum, Pin. 731204.

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f) Mayarani Rakhit, daughter of Late Satyapada Ghosh (wife of Jagadish Rakhit) of Vill. Ajyadha, P.O.

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Bonkathi, P.S. Kaksa, District West Burdwan.

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g) Pronoti Halder, daughter of Late Satyapada Ghosh (wife of Sridhar Halder), of Vill. & P.O. Ilambazar, P.S. Ilambazar, District Birbhum.

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h) Champa Sen, daughter of Late Satyapada Ghosh (wie of Bishnu Sen) of Vill. & P.O. Aushgram, District West Burdwan.

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i) Sikha Ash, daughter of Late Satyapada Ghosh (wife of Subir Ash) of Vill. & P.O. Gushkara, P.S. Gushkara, District Purba Bardhaman.

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j) Latika Nayek, daughter of Late Satyapada Ghosh (wife Dilip Nayek) of Vill. & P.O. Basuda, District West Burdwan.

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As such they are also the joint owners of the said properties. Since it is a suit for partition and it is necessary that the shares of the parties are properly adjudicated to obviate all future controversies and having regard to the fact that, we are prima facie of the opinion that the disclosures made in the petition and in the supplementary affidavit require consideration, we direct the trial court to hear the suit afresh provided the appellant file an application for amendment of the plaint within five weeks from date, in default, the decree of the learned trial court shall revive.

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We make it clear that the amended plaint must disclose all the properties and parties either necessary or proper for a fair adjudication of the dispute between the parties.

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In the event an application for amendment of the plaint is filed within the aforesaid period, we would request the learned trial judge to pass peremptory direction with regard to procedural

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matters in order to make the said suit ready for hearing and dispose of the said suit as expeditiously as possible without granting any adjournment to either of the parties unless it is unavoidable. The recourse to mediation may also be explored if the learned trial judge is of the view that this matter can be resolved through mediation.

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We make it clear that the additional evidence shall be proved in accordance with law.

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With the aforesaid observation, the impugned judgment is set aside.

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LCR shall be sent down immediately.

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The appeal and the application stand disposed of.

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(Uday Kumar, J.) (Soumen Sen, J.)

Bishnupada Ghosh in Place of Nanda Dulal Ghosh(Since Deceased) and Ors. v. Prabhat Kr. Ghosh and Ors.

Case brief

What is this about?

What did the court decide?

Bishnupada Ghosh in Place of Nanda Dulal Ghosh(Since Deceased) and Ors. v. Prabhat Kr. Ghosh and Ors.

Case brief

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What did the court decide?

What the court decided

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