Dulal Debnath And Ors vs Gopa Nag And Ors

I have heard learned Sr. counsel Mr. A.K. Bhowmik for the appellants original defendants No.4 to 9 and learned Sr. Counsel Mr. S.M. Chakraborty for the respondents No.1(a) to 1(h), the legal heirs of original plaintiff. Rest of the respondents herein though served have not appeared.

The second appeal is being disposed of on a broad consensus and, therefore, it is not necessary to refer to the questions of law framed at the time of admission of the appeal or the full evidence on record. However, in order to appreciate the final directions, broad facts may be noted:

Plaintiffs had filed a suit for partition of a family property. The plaintiffs and defendants No.1 to 3 comprised an undivided family. According to the plaintiffs, under a sale deed dated 12.05.1951 land admeasuring 1(one) drone (i.e. 16 kanis) was purchased as a joint family property. According to the plaintiffs, defendant No.1 Bhanumoy Sengupta during his lifetime had sold away 3(three) kanis out of the suit land way back in the year 1957 to one Sri Nikunja Behari Debnath, defendant No.10. It appears that Nikunja Behari Debnath in turn sold the said 3 kanis land to defendants No.4 to 9 sometime in the year 2004-05. The remaining joint family property now, therefore, is less than 13 (thirteen) kanis as per the revenue records.

In this context, the plaintiffs prayed for partition of the joint family property, claiming their 1/4th share. The suit was dismissed by the trial Court. In appeal, however, the appellate Court passed following order:

"12. In view of my above findings in the aforesaid two points, the appeal is allowed on contest. The appellants are entitled to get 1/4th share, on the suit property mentioned in schedule of the plaint and the suit is decreed accordingly. The appellants and the respondent No.1 to 3 are at liberty to make partition of their respective share on the suit property mentioned in schedule of the plaint by metes and bounds in terms of preliminary decree within a period of two months. In the event of failure to make partition of the suit property, the appellants are at liberty to approach the trial Court for making partition of the suit property by metes and bounds by appointing Survey Commissioner."

The grievance of the appellants original defendants No.4 to 9 is short. They contended that while ordering partition of the suit property, the appellate Court has completely overlooked their right and title in 3(three) kanis of land which were already sold away by one of the members of the joint family which sale deed executed in the year 1957 was never challenged. They had in turn purchased the same land from the first purchaser, defendant No.10. The second grievance is that the 3(three) kanis land was sold out of un-partitioned property. When the entire joint family property is now being partitioned, the said 3(three) kanis land purchased by them should also be identified by metes and bounds.

Learned counsel for the original plaintiffs also agreed that the entire dispute between the family members, i.e. the plaintiffs and the defendants No.1 to 3 is confined into the remaining land out of 16 (sixteen) kanis of land after subtracting 3(three) kanis of land sold away by defendant No.1. He would, therefore, in principle agree that the partition of the family property would be limited to the remaining area of land and not entire 16 (sixteen) kanis of land showed as suit land in the schedule.

When the sale made by defendant No.1 way back in the year 1957 to defendant No.10 is not in challenge and when the defendants No.4 to 9 have purchased the said 3(three) kanis land from defendant No.10, whatever order that the Court may pass in the suit for partition of the joint family property, their interests would also have to be taken care of. In partial modification of the preliminary decree ordered to be drawn by the appellate Court, it is provided that the partition of the suit land between the members of the family, i.e. the plaintiffs and defendants No.1 to 3 would be confined to the remaining area of land out of 16 (sixteen) kanis after reducing the same by the land already sold away by defendant No.1 to defendant No.10 in the year 1957 and which was subsequently purchased by the defendants No.4 to 9. Further at the time of actual partition by metes and bounds, even such land could be identified so that the said defendants can have the actual physical possession of the partitioned land and meaningful partition between the members of the family of the remaining area of land can be carried out.

With these directions, appeal is disposed of.

Pending application(s), if any, also stands disposed of.