Sri Nirmalendu Roy vs Sri Sukhendu Roy & Anr.

This is an utterly frivolous appeal and a complete waste of time. The entire exercise may be for the benefit of the profession but it is scarcely of any use to the litigants involved.

The preliminary decree in a partition suit has been challenged on the ground that the appellant-defendant had pleaded "ouster of possession" for a period of 12 years and such ground was not appropriately considered by the trial court. Despite the appellant being offered to cite any statute on such plea of "ouster of possession", no legal basis of such claim is asserted. It is also evident that there was no evidence adduced in such regard.

As the trial court appropriately appreciated the point, the plea taken by the appellant herein is one of adverse possession. Apart from it being completely impermissible on the part of a co-owner to claim adverse possession in respect of an undivided property, there is no assertion of any hostile exclusive claim to the property in question which is said or shown to have been made at a point of time 12 years prior to the institution of the suit.

The appellant is one of two sons of the erstwhile owner of the property. The erstwhile owner died intestate and the estate devolved on his widow, a daughter and his two sons. The widow transferred her interest in the property to the appellant and the daughter transferred her share in the property to the respondent-plaintiff, thus making the two sons of the erstwhile owner half-owners of the joint property. The preliminary decree has declared as such and the same is affirmed.

A further point is taken on behalf of the appellant that the trial court failed to appreciate that appropriate court-fees had not been paid by the plaintiff at the time of the institution of the suit. It is the appellant?s contention that since the plaintiff was not in possession of the joint property at the time of the institution of the suit, the entire court-fees ought to have been paid by the plaintiff.

A matter of court-fees scarcely touches upon the merits of the claims of the rival parties in an action. At the highest, a defendant is entitled to bring its perception as to short payment of court-fees to the notice of the court whereupon it becomes a matter between the court, which takes care of the revenue, and the party perceived to have short-deposited the court-fees. In any event, in a partition action, the entirety of the court-fees are not deposited at the outset as the parties pay the court-fees according to the respective shares that they are declared to be entitled to. The preliminary decree cannot be faulted for the perceived short payment of courtfees by the respondent-plaintiff.

For the reasons aforesaid, FA 5 of 2018 is dismissed with costs assessed at 200 GM to be paid to the plaintiff. The trial court is requested to ensure that appropriate steps are now taken for the appointment of a partition commissioner and for the partition of the property in accordance with the shares as declared by the preliminary decree.

CAN 6327 of 2017 is also disposed of.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.