Tapan Majumder vs Nepal Bhawal And Others

T. Amarnath Goud, J

Heard Mr. D.K. Biswas, learned senior counsel assisted by Mr. G.K. Nama, learned counsel appearing for the petitioner as well as Mr. Somik Deb, learned senior counsel assisted by Ms. R. Majumder, learned counsel appearing for the respondents.

This is a petition filed under Section 115(1)(c) of the CPC questioning the correctness of the order dated 22.03.2022 delivered in Civil Misc.12 of 2022 arising out of Ex(T)9 of 2021 by the Civil Judge, Senior Division, Court No.2, Udaipur, Gomati Tripura.

The case in short is that the plaintiffs had filed a suit for partition of the property described in the schedule of the plaint comprised of 5.58 acres claiming that the property is a joint property. One Sushila Sundari Devi @ Sushila Sundari Debnath the original owner had sold 0.90 acres of land in 1979 to one Manik Lal Sarkar out of her total land. Manik Lal Sarkar again sold it by a registered deed to the petitioner [defendant No.5 in the plaint] in 1985. While taking possession of 0.90 acres of land, he also started possessing adjacent lands, enclosed by wall, and continued to possess on and from 1985 to till the filing of the suit. The petitioner contested the suit and claimed that he is not one of the joint owners and was possessing the land by dint of the registered purchase deed in the year 1984 and the adjacent land were possessed by him adversely. He has further claimed that the right of the plaintiffs to sue against such possession had extinguished under Section 27 of the Limitation Act.

The trial court dismissed the suit for partition holding that the registered purchased deed produced by the petitioner clearly shows that the property had already been partitioned in the year 1985.

Thereafter, the plaintiffs filed an appeal being T.A.17 of 2017 under Section 96 of the CPC which was disposed of by the judgment dated 03.01.2019 reversing the judgment of the trial court and confirmed the judgment of the first appellate court.

The case of the petitioner is that he is neither a legal heir of the original owner nor a joint owner of the suit property in question. His possession is by virtue of the registered purchased deed which is not under challenge. The petitioner has further stated that the respondents have not claimed that the land was purchased wrongly or fraudulently.

Having heard both the sides prima facie this court is convinced with the argument made by the counsel for the petitioner on the point that the petitioner is a purchaser of the property of the vendors and the legal heirs of Sushila Sundari Devi @ Sushila Sundari Debnath who are the respondents No.10(a), 10(b) and 10(c). It is the case of the petitioner that 0.90 acres of the land in the joint family property which is a subject property for partition suit and it needs to be protected. Since the petitioner inadvertently not list the particulars including the extent of land, boundaries and the sale deed documents before the court below in the execution proceedings and has invited an order of rejection of his application under Section 47 of the CPC which is under challenge.

Mr. Somik Deb, learned senior counsel appearing for the respondents has made a fair submission before this court that they have no objection if an opportunity is given to the petitioner by remanding the matter back to the court below and to reexamine the matter under Section 47 of the CPC if a fresh application, providing all particulars, is filed.

Since this court feels that an opportunity ought to have been given on the ground that his possession and his sale was not denied by the parties to the partition, a fair opportunity be given to the petitioner by the court below.

Accordingly, liberty is given to the petitioner to file a fresh application under Section 47 of the CPC providing all the relevant information. On filing such application, the court below shall examine the matter keeping in mind Section 47 of the CPC with regard to execution of the decree.

In view of the above discussion, the impugned order dated 22.03.2022 passed by the court below is set aside. The matter is remanded back.

Registry shall take steps for transmitting the lower court records. With the above observation, this petition is disposed of.

Pending application(s) also stands disposed of.