Ratna Ghosh, Since Deceased, Represented By Chanchal Ghosh And Another vs Sasanka Nath Chandra

Sabyasachi Bhattacharyya, J

The present appeal has arisen against the judgment and preliminary decree passed in a partition suit.

The successors-in-interest of the original defendant in the suit, who are the appellants herein, contend that it was specifically pleaded in the written statement that the defendant has solely constructed the first and second floors over the suit property. The said construction, it was pleaded, was with the defendant’s own fund with the help of her sons.

Exclusive possession of the first and second floors of the defendant and her branch of the family has also been claimed. It is submitted that during evidence, the DW1 (Defendant’s Witness No. 1) produced several documents to show that the materials for construction of the first and second floors were purchased by the defendant.

It is contended that the learned trial Judge misconstrued the connotation of a statement by the DW1 in his cross-examination to the effect that there was never any partition regarding the suit land; by failing to appreciate that the expression “land” could not be construed to be the entire property with structures.

It is further submitted that the learned trial Judge overlooked the documents produced before it to show that the first and second floors were constructed by the defendant.

Learned counsel for the defendant/appellants also argues that it was virtually admitted in the evidence that by mutual arrangement, arrived at amicably, the first and second floors are exclusively occupied by the defendant and her family, whereas the plaintiff has been in occupation of only the ground floor.

PW1, in evidence, admitted also that separate entrances were constructed in respect of the suit property, which according to the appellants goes on to show that the plaintiff was in exclusive possession of only the ground floor, whereas the defendant was in occupation and was entitled to the first and second floors, which were constructed by the defendant with her money.

Learned counsel for the appellants also submits that admittedly, separate water and electricity connection exist with regard to the different floors of the property. As such, it is argued that the learned trial Judge erred in law and on facts in allocating shares in respect of the entire property including the first and second floors of the building between all the parties.

Learned counsel for the plaintiff/respondent points out that it is also an admitted position that the sanctioned plan regarding G+2 construction of the property was in the name of both the plaintiff and the defendant.

It is also submitted that in the absence of any document to show that construction of the first and second stories of the suit building were made exclusively by the defendant/appellant, the trial court rightly declared shares in respect of the property in favour of all the parties.

It is further argued by learned counsel for the respondent that the materials now sought to be relied on by the defendants/appellants regarding alleged construction of the first and second stories were not exhibited in the trial court.

Learned counsel for the respondent next contends that even if it is assumed for argument’s sake, without admitting, that the defendant made some contributions to the construction of the first and/or the second floor of the building, per se, such contributions cannot lead to the conclusion that the first and/or second floor belong exclusively to the defendants/appellants.

In such case, subject to proof of such expenditure, at best the final decree and the Partition Commissioner’s Report would take into consideration such contribution in adjusting the owelty money and/or allocation of the shares between the parties.

However, the same cannot be a ground of challenge to the preliminary decree.

On a careful consideration of the materials on record, we find that the only documents which were exhibited by the plaintiff were a certified copy of the sale deed regarding the land on which the suit property is housed, occupancy certificate, municipal tax receipt and electricity bills marked as exhibits at the instance of the plaintiff. The defendant exhibited only the self-same sale deed and as such, no further document comes forth from the defendant to establish that the defendant spent money or exclusively constructed the first and second stories of the suit building.

That apart, the plaintiff/respondent is justified in arguing that even if one of the co-sharers constructed or contributed to the construction of one or more stories or some part of the building with the consent of the other co-sharers, the same ipso facto would not confer exclusive title regarding such portion or stories on the contributing party. The additional constructions, built on the already-existing joint property comprised of the suit land and the ground floor, would be a part of the hotchpot of the partition suit and appropriate measures in that regard and adjustments / crediting can be done at the time of filing of the Partition Commissioner’s Report and the final decree, taking into account the contribution, if any, by each of the parties in such addition and alteration.

As such, we find from the records that rather than establishing the appellants’ exclusive title in respect of the first and second stories of the suit building, the materials indicate that both parties agreed to the G+2 sanctioned plan and are entitled jointly to the land on which the said building has been constructed.

In any event, it will be open to the parties to establish their possession before the trial Court at the final decree stage, as well as their respective contributions, if any, to the construction of the building for due credit being given in respect of owelty money or allocation of possession in the final decree.

However, from the materials on record, we are of the opinion that the learned trial Judge was justified in declaring equal shares of all the parties to the suit in respect of the subject property, including the land and the entire building standing thereon.

Hence, there is no scope of interference with the impugned judgment and preliminary decree.

Accordingly, FA No. 166 of 2018 is dismissed on contest, thereby affirming the judgment and preliminary decree dated January 22, 2015 passed by the learned Civil Judge (Senior Division), First Court at Barasat, District- North 24 Parganas in Title Suit No. 592 of 2011.

It is expected that in view of the long pendency of the litigation, the learned trial Judge shall make endeavour to dispose of the suit at the earliest. It is also expected that all the parties shall co-operate with the learned trial Judge in that regard.

A formal decree be drawn up accordingly.

The records be sent down immediately by Special Messenger at the cost of the respondent, as per the prayer of the learned Advocate for the respondent.

The Special Messenger costs shall be deposited by the respondent within a week from date.

Needless to say, interim order, if any, stands vacated.