Shipra Dey & Ors. v. Sandhya Dey & Ors.

Shivakant Prasad, J.:— That the opposite parties 1, 2 and 3 as Plaintiff instituted the present suit for partition and injunction. Brief fact is that the parties to the suit are the owners in occupation of the suit property, being 15B Mansatala Lane, Police Station-Watgunj, Kolkata-700 023, consisting of three storied building mentioned in the schedule to the plaint where the owners reside in their respective separate mess. It is alleged that the Plaintiffs are facing difficulties in joint use and enjoyment of the property and requested the Defendant nos. 1 and 2 for amicable partition but they paid no heed to requests of the plaintiffs. Hence, the suit for partition, declaration and for permanent injunction.

2. That the Petitioners on receipt of the summons of the case entered appearance and on 26th June, 2013 filed written statement along with counter claim wherein your Petitioners brought the landed property having as area of 572 decimals in Khatian no. 1164, Dag No. 9603 (27 decimals) Khatian No. 1816, Dag No. 9608 (194 decimals) Khatian No. 1894, Dag No. 9610 (13 decimals) Khatian No. 1816, Dag No. 9611 (57 decimals), Khatian No. 1816, Dag No. 9612 (56 decimals), Khatian No. 1876, Dag No. 9613 (225 decimals) at Mouza-Tulin, J. L. No. 42, Police Station-Jhalda, District-Purulia together with one single storied building and another two storied building standing thereon which is known as Sarkar Bunglow, Tulin into the hotchpotch of the suit for partition instituted by the Plaintiffs/Opposite Parties. It is the specific case of the Petitioner that the aforesaid property at Tulin, Jhaldah, District-Purulia jointly belonged to the parties to the suit and the Plaintiffs with a malafide intention have not brought the aforesaid property along with the suit property into the hotchpotch of the instant suit. Accordingly, Petitioners prayed for a decree of partition, a decree of permanent injunction restraining the Plaintiffs their men, agent and all persons acting on their behalf in any manner, creating any third party interest in the suit properties. That on the self same date the Petitioners along with the written statement with counter claim also preferred an application Under Order 39, Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying for an order of temporary injunction restraining the Plaintiff, their men, agents in creating any third party interest or causing obstruction or hindrance in the matter of peaceful user occupation and enjoyment of the schedule premises and other properties by the Defendants till the disposal of the suit and the counter claim.

3. That on 18 July, 2013, the Petitioners moved two applications one under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure for adding the four transferees who have acquired undivided shares of the Plaintiffs and the Defendant Nos. 3, 4 and 5 in the suit property at Tulin, Police Station-Jhalda, District-Purulia during the pendency of the suit for partition. But on contested hearing the application got rejected.

4. Being aggrieved by and dissatisfied with the Order dated 21st January, 2014 passed by the Learned Civil Judge (Senior Division), 6 Court at Alipore in Title Suit No. 9 of 2013 (Sandhya Dey v. Kali Sarkar Dey), the present revisional application under Article 227 of the Constitution of India has been preferred on the grounds interalia, that the learned Judge in the Court below acted illegally and with material irregularity in not considering the fact that during the pendency of the suit the Plaintiff and the non-contesting Defendants in collusion with each other have sold their undivided share of the joint properties to third parties and their presence is necessary for complete adjudication of the lis and to prevent multiplicity of proceedings. The learned Judge rejected the application for addition of parties holding that their presence is not necessary in the suit without considering the fact that suit is for partition and admittedly the parties ought to be added as Defendants who have acquired undivided shares/interest over the suit property and became the co-owners with the Petitioners.

5. It is contended by the Defendant Nos. 1 and 2, the Petitioners herein that the Plaintiffs have filed the instant suit claiming partition of the suit premises suppressing other property besides they have also started to create 3rd party interest.

6. The Plaintiffs were requested to make partition of the Tulin property under P.S Jhalda, District-Purulia.

7. My attention is invited to Page 85 and 87 which Deed of Kobala dated 24.6.2013 and another Deed of Kobala dated 24.6.2013 which reveals that the Plaintiffs and Defendant Nos. 3 and 4 have sold the Tulin property in favour of 3 party. Petitioners submitted an application under Order 1 Rule 10 read with Section 151 CPC with contention that they have acquired undivided shares of the Plaintiffs and the Defendant Nos. 3, 4 and 5 in the suit property at Tulin Police Station under P.S-Jhalda, District-Purulia and the presence of the transferee is necessary to enable the Ld. Court below to effectually and completely adjudicate upon and settle all the question involved in the suit.

8. As I have discussed that by the Deed of Kobala dated 24.6.2013, Plaintiffs and Defendant Nos. 3, 4 and 5, by separate Deed have sold their right title and interest in Tulin property. So the Defendant Nos. 1 and 2 filed a counter claim of bringing the Tulin property in the suit in hotch potch.

9. The Ld. Court has observed in the impugned order that according to Section 16 and 17 CPC, the suit for partition of immovable property may be instituted in any Court of the local limit of whose jurisdiction any partition of property is situated. It is admitted fact that plaintiffs are the legal heirs of one of the four sons named Kali kumar Dey since deceased. Defendant No. 3 to 5 are the legal heirs of another deceased son of Mahim Chandra Dey and it is also admitted fact that during 2012 the plaintiffs and the Defendants have jointly sold, transferred and conveyed a portion of property at Purulia to a third party after retaining certain part together with a single storied building and another two storied building at Purulia. From the copy of the plaint at Page-17 it appears that the suit for partition by the Plaintiff was filed on 4 February, 2013 whereas Tulin property has been sold by the plaintiffs and Defendant Nos. 3, 4 and 5 on 24.6.2013 that is to say, during the pendency of the suit.

10. The ground is taken on behalf of the Petitioner that the Ld. Judge of the Court below erred in law in not considering that the suit for partition relating to several joint properties, though situated within different territorial jurisdictions can be tried and decided in one court having territorial jurisdiction and in the present case the suit for partition is instituted by the Plaintiffs themselves before the Learned Court below having territorial jurisdiction leaving behind portions of the joint properties.

11. The Learned Counsel for the Petitioners has referred to a decision of Syed Mohiddin (died) v. Abdul Rahim, Respondents reported in AIR 1964 Andhra Pradesh 260 wherein the short question that requires determination in this C.R.P is whether a third party could be added as defendant to a suit for partition in which a preliminary decree has been passed. In the cited decision in a suit for partition a preliminary decree was passed directing the partition of the properties by metes and bounds. Thereafter a commissioner was appointed for division of the properties. When the commissioner came for measurement and partition of a house, objections were raised by third persons who had purchased the house long ago. It was held in the said set of facts that in the interest of justice and to avoid multiplicity of suits, it was desirable to implead them as parties to the proceedings, there being no legal bar to the adoption of such procedure.

12. In support of his case Learned Counsel for the Petitioner has also referred to a decision of Dorab Cawasji Warden v. Coomi Sorab Warden reported in 1990 SC 867, wherein it has been held that Section 44 of Transfer to property Act and Section 4 of Partition Act are complementary to each other and that the interim mandatory injunction against vendor and vendees regarding possession can be issued.

13. Prima facie having found that the plaintiffs and Defendant Nos. 3, 4 and 5 have transferred the undivided share in Tulin property, So, the vendees, if not necessary party are proper party to the suit for the determination of the real matter in dispute for effective and final decision.

14. Therefore, the revisional application is allowed. The Order impugned dated 21.01.2014 passed in Title Suit No. 09 of 2013 is hereby set aside. A copy of this judgement be sent down to the Learned Court to consider the application afresh for impleading the 3 party purchaser of Tulin property under P.S Jhalda, District-Purulia who will proceed thereupon to dispose of the suit according to law.

15. Urgent certified photocopy of this Judgment and order, if applied for, he supplied to the parties upon compliance with all requisite formalities.