Annapurna Ghosh vs Biplab Ghosh (Minor) and others

The first appeal arises out of a preliminary decree in a partition suit.

The plaintiff, Biplab Ghosh, is the biological son of one Bankim Chandra Ghosh. However, Bankim and wife Annapurna have four daughters. Bankim apparently gifted the property marked as schedule Ka(2) to the plaint to the plaintiff and Bankim and wife Annapurna jointly held the property included in schedule Ka(1) to the plaint. Bankim gifted his undivided interest in the property covered by schedule Ka(1) to the plaintiff. The partition suit was instituted by Biplab on the allegation that the property marked as schedule Ka(1) was required to be divided between the parties and the property marked as schedule Ka(2) had to be "allotted" to the plaintiff. First defendant Annapurna is the appellant herein and she claims that the property described in schedule Ka(2) could not have been included in the partition suit nor can any person be dispossessed from such property by a subterfuge or in course of the partition suit. The appellant submits that since it is the plaintiff''s case that the plaintiff is exclusively entitled to the property described at schedule Ka(2), the plaintiff ought to seek a declaration and the consequential relief of recovery of possession to wrest control of the schedule Ka(2) property; the possession of the schedule Ka(2) property cannot be obtained by throwing it into the hotchpot of partition.

Indeed, the trial court has gone wrong in declaring the shares on the basis of both schedule Ka(1) and Ka(2) properties. If the plaintiff is right and the plaintiff is exclusively entitled to the property covered by schedule Ka(2), the defendants would have no right or title to such property. In such a scenario, there would be no question of any partition of the property covered by schedule Ka(2).

Accordingly, the judgment and decree impugned dated August 29, 2013 is set aside and the plaintiff is directed to delete all reference to schedule Ka(2) or the property covered thereby in the plaint and proceed with the suit afresh where the only property that will be covered by the partition suit will be the property under schedule Ka(1).

It will be open to the plaintiff to institute a fresh suit in respect of the property covered by schedule Ka(2) in the plaint relating to the present suit. In the event there is a question of limitation, the time spent in course of the present proceedings may be cited by the plaintiff as sufficient reason under Section 14 of the Limitation Act, 1963.

Let the lower court records be sent down immediately with a request to the trial court to pass a fresh preliminary decree pertaining to the property covered by schedule Ka(1) in accordance with law, within three months of the plaint being amended in terms of this order by the plaintiff. FA 31 of 2015 along with CAN 11176 of 2017 and CAN 11177 of 2017 are disposed of as above, but without any order as to costs.