Surendranath Singh vs Smt. Sabitri Dey

Bhaskar Bhattacharya, J.—This first appeal is at the instance of Defendant No. 2A in a suit for partition and permanent injunction and is directed against the judgment and Decree dated March 30, 2000 passed by the learned Civil Judge, Senior Division, 2nd Court, Howrah in Title Suit No. 3 of 1995 thereby passing a preliminary decree declaring 1/3rd share of the Plaintiffs and proforma Defendants and 2/3rd share of Defendant Nos. 1 and 2 and also passing a decree for permanent injunction restraining the Defendants including the present Appellant from changing the nature and character of the suit property.

The suit was initially filed by the Plaintiffs for partition claiming 1/3rd share of the Plaintiffs jointly with proforma Defendant Nos. 3 to 15 in the suit property and restraining the Defendant Nos. 1 and 2 from changing the nature and character of the property and from transferring or alienating or encumbering any portion of the suit property. The suit property consists of Danga land. Bastu with structure and Doba measuring about 2 bighas 13 cottahs as also another Bastu measuring 26 decimals.

The case made out by the Plaintiffs may be summarised thus:

(a) the suit property orginally belonged to three co-sharers, namely Sudhir Kumar Dey, Sushil Kumar Dey and Madan Mohan Dey, each having undivided 1/3rd share in the property. The Plaintiffs and proforma Defendant Nos. 3 to 15 are the heirs of Sudhir. Madan Mohan Dey by a registered deed dated 28th February, 1983 sold away his undivided 1/3rd share in the property in favour of Defendant No. 1. Subsequently, the heirs of Sushil Kumar Dey by another registered deed dated 14th January, 1994 sold away their undivided 1/3rd share in favour of Defendant No. 2 and thus, the Defendant No. 1 and 2, the son and the mother, respectively, became owners of undivided 2/3rd share in the property.

(b) The Defendant Nos. 1 and 2 having anticipated institution of the suit for partition, illegally tried to change the nature and character of the suit property and in collusion with eachother were trying to frustrate the case of the Plaintiffs by attempting to transfer, alienate and sell the suit property to the third party and to encumber the property and as such, the prayer for permanent injunction was also made in the said suit for partition.

(c) Subsequently, by amendment of the plaint, the Defendant No. 2A, who is the husband of Defendant No. 2 and father of Defendant No. 1 was added with further allegations that Defendant Nos. 1 and 2 in collusion with the said Defendant No. 2A were trying to make illegal construction and unauthorised structure on the suit property and as such, the said Defendant No. 2A was added with modified prayer for restraining the Defendant No. 2A along with the other Defendants from changing the nature and character of the property and/or from transferring or encumbering any portion of the same.

(d) The aforesaid suit was contested by Defendants by filing two sets of written statements, one by Defendant Nos. 1 and 2 and the other by Defendant No. 2A. In the written statement filed by the Defendant Nos. 1 and 2, they denied right, title and possession of the Plaintiffs in the suit property and according to them, the entire suit property was under occupation of Defendant No. 2A who was inducted as a tenant by Sushil Kumar Dey with the consent of his other two co-sharers during their life time and Sushil Kumar Dey used to collect rent from the said Defendant No. 2A for self and/or on behalf of other co-sharers including the predecessor-in-interest of the Plaintiffs. According to Defendant Nos. 1 and 2, the year of induction of Defendant No. 2A in the suit property was 1960 and from the year 1960, Defendant No. 2A had been running brick manufacturing business on the entire suit property as tenant under all the three erstwhile co-sharers as sole proprietor of his business under the name and style of ''Rathor Brick Works''.

(e) The Defendant No. 2A also filed a separate written statement thereby asserting that he was a bona fide tenant and was running brick manufacturing business on and from the year 1960 to the exclusion of others as sole proprietor of the business under the name and style ''Rathor Brick Works'' after paying rent to Sushil Kumar Dey and his brothers and the said Sushil Kumar Dey used to collect rent form him for self as well as on behalf of other co-sharers. The said Defendant No. 2A supported the claim of Defendant Nos. 1 and 2.

(f) At the time of hearing of the suit, one of the Plaintiffs deposed on behalf of Plaintiffs while three witnesses namely, the Defendant No. 2A, one Samir Kumar Dey son of Madan Mohan Dey, one of the previous co-sharers and one Sita Ram Singh who claimed to have a business of brick manufacturing in the disputed property prior to 1960 deposed on behalf of Defendants.

The learned Trial Judge on consideration of the entire materials on record disbelieved the defence taken by the Defendants that the Defendant No. 2A was inducted as tenant in respect of the entire suit property for manufacturing brick and for running brick field business. The learned Trial Judge, thus decreed the suit for partition thereby declaring 1/3rd share of the Plaintiffs jointly with proforma Defendants and passing a decree for permanent injunction restraining the Defendant No. 2A from changing the nature and character of the suit property.

Being dissatisfied, the Defendant No. 2A alone has preferred the present appeal.

Mr. Bhattacharya, the learned Counsel appearing on behalf of the Appellant has strenuously contended before this Court that the learned Trial Judge while considering the materials on record, erroneously construed the documentary evidence produced by his client and thus, wrongly disbelieved the case of tenancy pleaded by Defendant No. 2A. Mr. Bhattacharya further contends that a in a suit for partition there was no scope of investigating the question whether Defendant No. 2A was a tenant in respect of the property. He, thus, prays for dismissal of the suit in its entirety.

Mr. Roy Chowdhury, the learned Senior Counsel appearing on behalf of Plaintiff-Respondent, on the other hand has supported the judgment and Decree passed by the learned Trial Jude and has contended that the learned Trial Judge on consideration of the entire materials on record rightly held that the plea of tenancy taken by Defendant No. 2A in respect of the entire property for manufacturing brick was a false plea. Mr. Roy Chowdhury further points out that the sale deeds by virtue of which the son and wife of Defendant No. 2A acquired their share in the property did not indicate that there was existence of any brick field in the suit property and in fact, the Defendant No. 2A was carrying on business of brick field on a different property by the side of the suit property. Mr. Roy Chowdhury further contends that no rent receipt has been produced by the Defendants showing that at any point of time the predecessor of Plaintiffs ever granted any rent receipt in favour of Defendant No. 2A. According to Mr. Roy Chowdhury, the rent receipts produced by Defendant No. 2A are all manufactured and have been obtained in collusion with the vendors of Defendant Nos. 1 and 2. According to Mr. Roy Chowdhury, if any person is inducted as a tenant in respect of the property without consent of the predecessor-in-interest of his clients, such tenancy cannot be binding upon his client. In support of such contention Mr. Roy Chowdhury relies upon a Full Bench decision of this Court in the case of Niranjan Mukherjee v. Soudamini Dasi 30 C.W.N. 511. Mr. Roy Chowdhury, thus, prays for dismissal of the appeal.

After hearing the learned Counsel for the parties and after going through the materials on record we find that son of Defendant No. 2A namely, the Defendant No. 1 first purchased 1/3rd share of the Madan Mohan Dey in the suit property by virtue of sale deed dated February 28, 1983. In the said sale deed, it is clearly mentioned that the suit property is partly tenanted and Defendant No. 1 was permitted to realise rent from different tenants in his own name with further indication that those tenants were tenants at Will. In the said sale deed there was no hint that any part of the property was a brick field or that Defendant, No. 2A was the only tenant in respect of the entire property. After seven years, when Defendant No. 2, the wife of Defendant No. 2A, purchased further 1/3rd share from the heirs of another co-sharer namely, Sushil Chandra Dey, in that deed also there is no indication that Defendant No. 2A was running any brick field in the property; on the other hand, in the penultimate paragraph, it was stated that the Defendant No. 1 and her husband were tenants under the vendors for a long time and were residing in the suit property. It is further mentioned in the said deed that the property was not encumbered and the vendors gave khas possession in favour of the purchaser. It was further written that the purchaser would be entitled to partition the suit property amicably or through Court with other co-sharers.

From the aforesaid two deeds it is clear that Defendant Nos. 1 and 2 purchased 2/3rd undivided share of other two groups of co-sharers and although in the deed of 1983 existence of various tenants were there but in the deed of 1990 the Defendant No. 2 and her husband have been described as tenants who were residing there. Thus, the plea taken by the Defendants that the Defendant No. 2A was inducted as tenant in respect of entire property from 1960 for running brick field is falsified from their own documents. If Defendant No. 2A was really the sole tenant for running brick field in respect of entire property from 1960, the question remains why in the deed of 1983 there was no indication to that effect at all and why the purchaser was given right to realise rent from the ''tenants'' and why even in the subsequent deed of 1990 such fact was not noted and on the other hand, it was simply stated that Defendant No. 2 and her husband namely, Defendant No. 2A were residential tenants.

From the rent receipts produced by Defendants, it appears that no rent receipt was issued by the predecessor-in-interest of the Plaintiffs. That those rent receipts are subsequently manufactured will appear from the fact that the suit premises was previously numbered as 90 G.T. Road and was changed to 16 G.T. Road from the assessment year 1974-75 (see Ext. 13( but the alleged rent receipts for the year 1972 gave the description of the suit property as 16 G.T. Road which point out that at the time of manufacturing those rent receipts the Defendants totally forgot that the new number was not in existence in the year 1972. We therefore do not place any reliance upon those rent receipts and agree with the learned Trial Judge that those are manufactured one. Although, various documents have been produced showing that the Defendant No. 2A had been running brick field and paying taxes to Government for running such brick field but it does not appear that those were from 1960 as claimed in the written statement. Although, for subsequent period, namely, from 1975, there are some receipts, we agree with the learned Trial Judge that as the Defendant No. 2A is admittedly running business in the adjoining property, those receipts and licences relate to the said brick field situated by the side of the suit property at 2, Punam Chand Bagaria Road. It further appears from Ext. 1, the inspection report of the brick field for the year 1995 filed by the Defendants that the working place of the brickfield was at 2, Punam Chand Bagaria Road and the name of the establishment was Rathor Brick Works at 360, G.T. Road and thus, the plea taken by the Defendant that the suit property was let out to the Defendant No. 2A for brick manufacturing purpose has been proved to be concocted from their own documents. Even Ext. G series, the licence granted by the municipality for running brick field to the Defendant no 2A show that those were given for running the business at 153 G.T. Road and not for running any brick field at the suit premises. It appears from the subsequent deed of 1990 executed by heirs of Sushil Kumar Dey that Defendant No. 2A and Defendant No. 2 were residing as tenant in respect of a portion of the property and as such, if the residential address of licence holder as given in those documents is that of suit property that fact does not confer any tenancy right in respect of the entire suit property and that too, for running a brick field.

From the aforesaid materials, there is no trace of doubt that the plea of the Defendants that the Defendant No. 2A was inducted by all the co-sharers for running brick field from 1960 has not been established. It appears that in the year 1983, the Defendant No. 1 has purchased 1/3rd share and subsequently in the year 1990, his mother, the Defendant No. 2, purchased a further 1/3rd share and Defendant No. 2A was inducted as tenant for Bastu portion by other co-sharers than the Plaintiffs'' predecessor.

It is now settled position of law as laid down in the case of Niranjan Mukherjee v. Soudamini Dasi Supra, that if some of the co-sharers create encumbrances by inducting tenant without the consent of other co-sharers, on partition of the property, the other co-sharers who did not consent to such induction, are not bound by the encumbrances created by some of the co-sharers. Therefore, in the instant case, the other co-sharers than the predecessor of Plaintiffs having inducted Defendant No. 2 or Defendant No. 2A as tenant in respect of a portion of the property without the consent of the predecessor in interest of the Plaintiffs and the proforma Defendants Nos. 3 to 15, they are not bound by such induction and as such, they are entitled to get allotment of the property free from such tenancy. In other words, the Defendant No. 2A or Defendant No. 2 shall have no right of tenancy over the 1/3rd portion that should be allotted to the Plaintiffs and proforma Defendant Nos. 3 to 15.

We, thus, hold that tenancy created by other co-sharers than Plaintiff''s predecessor will not be binding upon the Plaintiffs and proforma Defendant Nos. 3 to 15 and by virtue of such tenancy, the Defendant No. 2 or Defendant No. 2A should not be permitted to change the nature and character of the property and/or create any encumbrances.

Regarding other point raised by Mr. Bhattacharya, the learned Advocate for the Appellant that the right of the Defendant No. 2A cannot be adjudicated in this suit for partition, we find that such plea is equally devoid of any substance. If in a suit for partition, one of the co-sharers takes a specific defence that a particular person is a tenant in respect of the entire property by virtue of induction by all co-sharers and such plea is disputed by the Plaintiffs alleging induction without their consent, there is no wrong on the part of the court to decide such question in the suit itself when the said alleged tenant has been made party in the suit.

We, thus, uphold the decree passed by the learned Trial Judge. The appeal is, therefore, dismissed. In the facts and circumstances, there will be, however, no order as to costs.

Narayan Chandra Sil J.

I agree.