1. The instant second appeal is directed against the judgment and decree dated 29th November, 2005 and 2nd December, 2005 respectively passed by the learned Additional District Judge, Fast Track 1st Court at Tamluk in Title Appeal No.35 of 2004 reversing the judgment and decree dated 25th January, 2001 passed by the Civil Judge (Senior Division), Tamluk in Title Suit No.99 of 1990.
2. The defendant No.1 and 2 are the appellants before this Court.
3. The respondent as plaintiff instituted Title Suit No.99 of 1990 against the defendants/appellants for partition, preemption of the suit under Section 4 of the Partition Act and permanent injunction stating, inter alia, that plot No.693 comprising in khatian No.192 of mouza Basudebpur, within P.S Durgachak, Medinipur measuring about 36 decimal of land was originally owned and possessed by one Biswanath Mandal, since deceased. Biswanath Mondal died leaving behind two sons Trailokya and Kumar. The said two sons of Biswanath during their life time used to own and possess the said 36 decimal of land in plot No.693 in equal share. Trailokya died leaving behind his only son Dharani. Dharani had two wives. From his first wife he had two sons, namely Ananta and Manmatha Mondal. Dharani had one son, named Santosh by his second wife. Trailokya, Dharani and Ananta are now deceased. Kumar died leaving behind his only son who is the plaintiff of the said suit. Ananta died bachelor and on his death, his brother Manmatha inherited the property left by Ananta. Thus, he inherited 1/3rd share of 36 decimal of land, i.e. 12 decimal of land in the suit plot. Santosh inherited 1/6th share of land, i.e. six decimal in the suit plot. Manmatha sold his 10 decimal land to the plaintiff in the said undivided property by executing a deed of sale dated 27th April, 1962. The remaining 2 decimal of land was transferred by the said Manmatha by way of exchange in favour of Santosh. Thus, Santosh acquired 8 decimal of land in plot No.693. Subsequently Santosh sold out 2 decimal of land out of the said 8 decimal of land to Bharat Chandra Mondal who is the son of the plaintiff and impleaded as proforma defendant in the suit. Subsequently he also sold out the remaining 6 decimal of land in the suit plot in favour of the defendant No.1 and 2 by executing a registered deed of sale. The said property is the disputed suit property morefully described in schedule 'Ka' of the plaint. According to the plaintiffs entire plot No.693 is recorded as bastu. The said plot has not been partitioned as yet. The defendant No.1 and 2 are the stranger purchaser in respect of 'Ka' schedule suit property. Therefore, the plaintiffs have prayed for effecting partition of the suit property and preemption under Section 4 of the Partition Act along with other consequential reliefs.
4. The defendant No.1 and 2/appellants contested the said suit by filing written statement wherein they denied all material allegations made out by the plaintiff against them in the plaint. Specific case of the defendants is that the suit property mentioned in schedule 'ka' of the plaint is not a part of undivided family dwelling house and accordingly the plaintiff is not entitled to a order of preemption in respect of the suit property. Specific case of the defendants/appellants is that the two sons of Biswanath Mondal namely Trailokya and Kumar were separate in mess after the death of their father Biswanath Mondal. They also amicably partitioned the plot No.693 according to their share. Both of them constructed separate house on their plots so partitioned and they used to own and possess their dwelling houses separately. Santosh Mondal sold out well demarcated 6 decimal of land to the defendants No.1 and 2 and the said land was never a part of undivided family dwelling house of the plaintiffs and the vendor of the defendants, namely Santosh. It was further pleaded by the defendants that Santosh offered the plaintiff to purchase the suit property but he refused to purchase the same. It was further pleaded that both Santosh and Manmatha left their residence long before the sale of the suit land in favour of the defendants and the suit land had lost the character of the undivided family dwelling house. On such pleading the defendants prayed for dismissal of the said suit.
5. On the basis of the pleadings the learned trial judge framed as many as seven issues. The parties led their evidence by adducing witnesses and examining documents which were marked exhibits.
6. On the basis of evidence on record the learned trial judge, on conclusion of trial decreed the suit in preliminary form against the defendants and exparte against defendant No.3 so far as it relates to partition. However the prayer of the plaintiff for preemption under Section 4 of the Partition Act was refused.
7. The plaintiff challenged the said judgment and decree passed by the learned trial judge in Title Suit No.99 of 1990 by filing Title Appeal No.35 of 2004 which was renumbered as Title Appeal No.169 of 2004. The said appeal, came up for hearing before the learned Additional District Judge, Fast Track 1st Court, Tamluk, Purba Bardhaman by a judgment dated 29th November, 2005. The learned Judge in First Appellate Court passed an order of preemption under Section 4 of the Partition Act in respect of the share of the property of the said Santosh Mondal which was transferred to defendant Nos.1 and 2 by a registered deed of sale dated 26th February, 1990 in respect of land measuring about 6 decimals mentioned in schedule 'Ka' of the plaint.
8. The judgment and order of preemption passed by the learned Judge in First Appellate Court reversing the judgment and decree passed by the learned trial court is impugned in the instant appeal at the instance of the plaintiff/appellant.
9. It is found from the record that the instant appeal was admitted for hearing on 17th May, 2006 formulating the following substantial questions of law:-
"Whether the learned courts below committed substantial error of law in passing a decree for preemption notwithstanding the fact that the suit has not been filed by the stranger purchaser in clear violation of Section 4 of the Partition Act?"
10. In course of hearing of the instant appeal this Court is of the view that in addition to the substantial question of law which has been formulated by the Division Bench of this Court the following additional substantial questions of law are required to be formulated for proper adjudication of the appeal. Accordingly invoking the provision of Section 100(5) of the Code of Civil Procedure, the following substantial questions of law were formulated by the Division Bench of this Court while admitting the appeal:-
"(1) Whether the learned Courts below substantially erred in law in holding that the 'ka' schedule property is a part of undivided dwelling house of the plaintiff in the absence of any evidence in this regard?
(2) Whether the learned Lower Court of Appeal substantially erred in law in holding that the right of pre-emption under Section 4 of the Partition Act is available to the co-sharers in view of the decision of this Court reported in AIR 1981 Cal 278 ignoring the fact that the said decision was subsequently overruled by the Hon'ble Supreme Court in AIR 2001 SC 61?
(3) Whether both the Courts below substantially erred in law by misappreciating the evidence on record holding, inter alia, that the 'ka' schedule property is part of undivided family dwelling house though there was no such evidence adduced by the plaintiff during trial of the suit?"
11. All the substantial questions of law recorded above are taken up together for discussion.
12. From the pleadings of the parties and evidence adduced by the witnesses, especially unchallenged deposition of the PW1 who is the plaintiff of the suit the following undisputed factual circumstances are found:-
(i) Biswanath Mondal was the original owner of plot No.693 of mouza Basudebpur comprising of 36 decimal of land.
(ii) The nature of the said land is recorded in the Record of Rights as bastu.
(iii) After the death of Biswanath Mondal, his two sons namely, Trailokya and Kumar inherited plot No.693 in equal share.
(iv) Trailakya died leaving behind his only son Dharani.
Kumar died leaving behind the plaintiff as his only son. Plaintiff inherited the share of Kumar in suit plot No.693. It is pertinent to mention that the said share is measuring about 18 decimal of land.
(v) Dharani had two wives. From his first wife he had two sons namely, Ananta and Manmatha and from his second wife he has one son, namely Santosh. Ananta died bachelor and the share of Ananta was inherited by Manmatha. Thus Manmatha had 12 decimal undivided share in the suit property.
(vi) Santosh, the only son born in the wedlock between Dharani and his second wife inherited 6 decimal of land in the suit plot.
(vii) Manmatha transferred 10 decimal of land out of his undivided 12 decimal of land to the plaintiff by executing a deed of sale dated 27th April, 1962.
(viii) The said Manmatha transferred the remaining 2 decimal of land to Santosh by a registered deed of exchange dated 24th March, 1981.
(ix) Subsequently, Santosh sold his 2 decimal of land in the suit plot to proforma defendant No.3 by a registered deed of sale. The said proforma defendant No.3 is the son of the plaintiff.
(x) On 26th February, 1990 Santosh sold out 6 decimal of land in the suit plot to defendant No.1 and 2 by a registered deed of sale.
13. The case of the plaintiff is that the suit property was never partitioned. Therefore, he prayed for preliminary decree for partition in respect of the suit property. He also claimed that since suit property is recorded as bastu and the defendant Nos.1 and 2/appellants are stranger purchasers, the plaintiff is entitled to preempt the said 6 decimal of land purchased by the appellants from Santosh Mondal.
14. Mr. Debayan Bera, the learned advocate on behalf of the appellants submits that the learned trial judge upon consideration of entire evidence on record held that 'Ka' schedule property which was purchased by the appellants is not a part of undivided dwelling house. The suit plot may be a portion of plot No.693 which is recorded as bastu. The recording of 'bastu' in the Record of Rights shows the nature of land. The nature of plot No.693 may be bastu but there is no evidence that over 'Ka' schedule property, there exist an undivided family dwelling house and it was purchased by defendant Nos.1 and 2. In support of his contention Mr. Bera submits that in determining whether a house is a dwelling house, we shall first find out whether the house in question was used by the members of the family for residential purpose. Secondly, it must be remembered that a dwelling house would include not merely the structure where the members of the family actually reside or used to reside but also all appurtenants such as a court yard used by the members and even other structures, if there are any, as for example a kitchen or a cowshed or a shed for garage provided they are or were used by the members of the family as parts of their residential house. Finally the question will also have to be determined with reference to partition taking into consideration the equities in partition that is to say whether the portion of the house which does not come within the ambit of the word "dwelling house" is so small that it would be convenient to include that portion also in the dwelling house. In support of his submission Mr. Bera refers to a decision of the Division Bench of this Court reported in AIR 1968 Cal 245 : Manick Lal Singh vs. Gouri Sankar Sha.
15. Coming to the instant case, it is submitted by Mr. Bera that there is absolutely no evidence that any part 'Ka' schedule property was ever used by the plaintiff and his co-sharers as an undivided dwelling house. On the contrary, it is found from the evidence of PW1 that there was a room constructed by 'Chitebera' (split bamboo) on a portion of 'Ka' schedule property and nobody dwells in the said room. Therefore, the suit property cannot be included as a part of undivided family dwelling house within the meaning of Section 4(1) of the Partition Act.
16. It is pointed out by Mr. Bera that the Full Bench of this court in Siba Prosad Bhattacharyya & Ors vs. Bibhuti Bhusan Bhattacharjee & Anr. reported in AIR 1989 CAL 35 held that Section 4 should be liberally interpreted. The object of Section 4 is to prevent the fragmentation of the family dwelling house by preventing to introduce stranger therein. The stranger is adequately, compensated by the market value of the property purchased so that dwelling house of the family be preserved. Such right of preemption under Section 4 is available to a co-sharer of an undivided family dwelling house even when he himself files a suit for partition and the stranger purchaser is arraigned as defendant and irrespective of the fact whether the stranger purchaser has actually applied for partition or separate allotment of his share or not. It is urged by Mr. Bera that the Full Bench of this Court arrive at such decision relying on the decision in the case of Santosh Kr. Mitra vs. Kalipada Das And Ors reported in AIR 1981 CAL 278. The learned Judge in First Appellate Court relied on the principle led down in the case of Santosh Kr. Mitra (supra) and held that even in a suit for partition filed by a co-sharer he can pray for preemption under Section 4 of the Partition Act.
17. However, it is rightly pointed out by Mr. Bera placing reliance on the decision of the Hon'ble Supreme Court in Gautam Paul vs. Debi Rani Paul & Ors. reported in AIR 2001 SC 61 that the principle led down in Siba Prosad Bhattacharyya (supra) was overruled by the Hon'ble Supreme Court in the aforesaid decision holding, inter alia, that in case of undivided dwelling house of a family, right of family member to preempt the share purchased by a stranger is available only when stranger/outsider sues for partition. The same principle was led down by the Hon'ble Supreme Court in a subsequent decision in the case of Gyan Chand & Anr vs. Sumat Rani & Ors. reported in AIR 2002 SC 2434.
18. Mr. Indrajit Mondal, learned Advocate for the respondent, on the other hand submits that in the suit filed by the plaintiff the learned trial court passed preliminary decree for partition the prayer for preemption made by the plaintiff was refused. The First Appellate Court allowed the prayer for preemption of the property purchased by defendant Nos.1 and 2 under Section 4 of the Partition Act. It is submitted by the respondent that against the judgment of the trial court, appellants did not prefer any appeal. Therefore, when the appellants did not challenge preliminary decree for partition, they cannot also challenge the order of preemption passed in favour of the respondent. In other words, it is submitted by Mr. Mondal that the purchasers had no right of possession of the suit property without partition. The suit property was purchased on 26th February, 1990. The co-owner has right to protect his interest. In a partition suit, the status of the parties cannot be determined as plaintiffs and defendants because each of them have the right to have a decree in accordance with their share. This aspect was not considered by the Hon'ble Supreme Court either in Gautam Paul (supra) or Gyan Chand (supra). Thus, it is submitted by Mr. Mondal that co-owner's right cannot be taken away and even in a suit for partition the plaintiff can pray for preemption under Section 4 of the Partition Act.
Section 4 of the Act provides as under :-
"4. Partition suit by transferee of share in dwelling-house.-
(1) Where a share or a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
(2) If in any case described in sub section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of last foregoing section." A mere look at the aforesaid provision shows that for its applicability at any stage of the proceedings between the contesting parties, the following conditions must be satisfied: (1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; (2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to the family;
(3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the concerned co-owner;
(4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; and
(5) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre- emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house
19. Therefore, it is clear that so long as the stranger purchaser does not seek actual division and possession either in the suit or in execution proceedings, a co-sharer can in a suit brought for partition by him or by any other co-sharer exercise the right under Section 4 of the Partition Act. The right of a co-sharer under Section 4 of the Partition Act will be available only if a transferee files a suit for partition.
20. Furthermore, in the instant case undivided family dwelling house was not purchased by the defendants. The defendants purchased a share in the bastu land having a dilapidated structure thereon. There is no evidence that the said structure is a part of undivided family dwelling house. In respect of plot No.6
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93 comprising of 36 decimal of land, at present plaintiff is the owner of 28 decimal of land and his son, proforma defendant No.3 is the owner of 2 decimal of land. Remaining 6 decimal of land was purchased by the appellants. From the evidence of PW2 Shaktipada Bera, it is ascertained there is a big pond in plot No.693. There are 2 brick built tile roof houses of the plaintiff towards the north and east of the pond. Thus, it is clear from the evidence of PW2 that the plaintiff and his family members constructed separate houses on various portions of plot No.693. There is no existence of undivided dwelling house in the said plot. Last but not least, the deed of sale by virtue of which the appellants purchased 6 decimal of land in plot No.693 is described as land with 'Ghar chappar' (room made by split bamboo). In the schedule of the said deed the name of the plaintiff is shown as the co-sharer of the purchased bastu land. 21. Thus, the appellants, not being purchasers of undivided family dwelling house cannot be subjected to preemption at the instance of the appellants. 22. The learned Judge in First Appellate Court wrongly decided the appeal in favour of the appellants so far as it relates to preemption under Section 4 of the Partition Act. 23. For the reasons stated above, substantial questions of law are decided in favour of the appellants. 24. As a result the appeal is allowed on contest, however without cost. 25. The judgment and decree passed by the First Appellate Court is set aside and that of the trial court in Title Suit No.99 of 1999 is restored. 26. Parties are at liberty to effect amicable partition within 60 days from the date of communication of the order in the trial court, failing which the parties are at liberty to initiate proceeding for final decree. 27. Let a copy of this judgment along with the lower court records be sent down to the court below for information and compliance. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.