IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION
APPELLATE SIDE

Present: Justice Jyotirmay Bhattacharya AND  Justice Ishan Chandra Das
F.M.A.T. 808 of 2016

Tamal Das
V
Dilip Kumar Das @ Dipak Das

Judgement on : 5th September, 2016.
Citation:AIR 2017(NOC) 188 Cal

Since the plaintiff/respondent has already entered appearance through Mr. Subhas Chandra Karar with Mr. Surajit Roy, service of notice of appeal need not be effected upon the plaintiff/respondent.The appeal thus, be treated as ready as regards service. After the appeal was admitted for hearing, when we were considering the application for stay filed by the appellant, in connection with this appeal, Mr. Karar, learned Advocate appearing for the plaintiff invites us to dispose of the appeal itself on merit.

We are informed by him that all the papers, necessary for disposal of the appeal, are annexed to the stay application and as such, this appeal can be decided on the basis of the materials available before us by dispensing with requirement of filing paper book in this appeal.

Considering such submission of the learned Counsel appearing for the parties, we have decided to dispose of the appeal itself on merit, on the basis of the materials available before us by dispensing with requirement of filing paper books in this appeal.

Let us now consider the merit of the instant appeal in the facts of the present case.

Here is the case where we find that the plaintiff/respondent had filed a partition suit against his co-sharers in respect of two schedules of properties i.e., schedule A and schedule B. The plaintiff is the uncle of thedefendants/appellants. It is claimed by the plaintiff that the plaintiff along with his brother, viz., Shri Bankim Das i.e., the predecessor-in-interest of the defendants/appellants jointly purchased A schedule property. On the death of Bankim Das, the defendants/appellants being the sons of the said Bankim Das inherited the share from Bankim Das in respect of A schedule property. The plaintiff, thus, claims that the plaintiff has half share in the A schedule property. He further claims that the defendant Nos. 1 and 2 jointly have half share in the A schedule property. The plaintiff further claims that the B schedule property is the joint property of the parties which they jointly inherited from their ancestors. Two plots are mentioned in the B schedule; one is Dag No. 780 and the other is Dag No.793; both are situated within Khatian No.391, J.L. No. 65 under village Jakeria, Mouza Jhikira, District -Howrah.

The said B schedule property comprises of two plots; one is bagan measuring about 8 Satak and another is Bastu together with one hall measuring about 1 cottah of land.

The defendants appeared in the said suit and filed written statement. In the written statement, purchase of the A schedule property by the plaintiff jointly with the predecessor-in-interest of the defendants/appellants, was not disputed. However, the defendants disputed the maintainability of the suit in paragraph 6 of the written statement. The defendants stated therein that the suit is bad nonjoinder of necessary parties. They claimed that suit is also bad for partialpartition inasmuch as the other joint properties lying at Mouza Boalia and Jhikira within the District of Howrah were not included in the hotchpot of the partition suit. In paragraph 13 of the said written statement, the defendant stated that the other co-sharers of B schedule property have not been joined as parties to the suit. The defendants thus disputed the plaintiff’s claim regarding their 50% share in the B schedule property. In paragraph 16 of the said written statement, the defendants denied that all the properties at Jhikira and Boalia were sold by all the co-owners to third parties. It was stated therein that the plaintiff who is the uncle of the defendant being the custodian of the entire documents of title relating to the suit property and the other properties, is duty bound to furnish the particulars of the properties both at Jhikira and Boalia. The defendant also stated therein that the defendants firmly believe that there are other properties which are required to be brought in the hotchpot of this partition suit.

In the context of such pleading of the defendant, the plaintiff has filed an application under Order 11 Rules 1 2 of the Code of Civil Procedure seeking direction upon the defendants to answer to the interrogatories, mentioned in schedule of the said application. The following questions were mentioned in the schedule to be answered by the defendants:

1. Name of the necessary parties to the suit as per paragraph 6 of the written statement.2. Supply details (Dags and Khatian etc) /description of the other joint properties in Mouza Boalia and Jhikira within District Howrah as per paragraph 6 of the written statement .

The defendant answered those interrogatories in installments. In the first set of answers to the interrogatories, the defendants disclosed the names and addresses of the other co-sharers of B schedule properties. In answer to the other interrogatory of the plaintiff, the defendants stated that they could not collect the description of the properties at Boalia and as such they were unable to supply the description of these properties immediately. They thus, prayed for leave to supply the Dag No. and Khatian No. of Boalia property during the trial of the suit.

Subsequently, the defendants in answer to the interrogatories of the plaintiff further disclosed that on enquiry from the Directorate of Land Records and Survey, West Bengal they could ascertain that the parties were the coowners of the Dag Nos. 771, 772, 773, 780, 790 and 793 of Mouza Jhikira which still remain unpartitioned. The particulars of the area of those plots and the classification thereof were also mentioned in the said application. Learned Trial Judge, while striking out the defence of the defendant by passing the impugned order, held that since the plaintiff have not replied to theinterrogatories relating to the properties in Boalia Mouza, their written statement is liable to be struck out.

The legality of the said order passed by the learned Trial Judge is under challenge in this First Miscellaneous appeal.

In this regard we are required to consider the pleadings made out by the plaintiff in paragraph 12 of the plaint in this context of the defendant’s pleading in paragraph 6 of the written statement. We find therefrom that the plaintiff claimed that all the properties at village Boalia were sold by all the co-owners to third parties. such pleadings of the plaintiff indicate that the parties had joint properties at Boalia but none of such properties is now available for partition as all the co-sharers sold those parties to third parties. Since such stand was taken by the plaintiff, the plaintiff cannot be absolved of his responsibility to prove such stand taken by him in the plaint, simply because of the fact that the defendant are unable to disclose the particulars of the left out joint properties at Boalia Mouza instantly in their answer to the plaintiff’s interrogatory. That apart we cannot lose sight of the defendants’ pleading in paragraph 16 of the written statement wherein they stated that the plaintiff who is the uncle of the defendants being the custodian of the title deeds relating to the joint properties of the parties, himself is liable to supply all the particulars relating to those properties at Boalia.Since the defendants are unable to supply the particulars of the left out joint properties at Boalia instantly, they prayed for leave to disclose the particulars of these properties at the time of trial of the suit.

The Court has not yet taken any decision on such prayer of the defendant.

In these set of facts we feel that the defence of the defendant should not have been struck out inasmuch as, if the defence of the defendant is struck out at this stage, a premium will be given to the plaintiff so far as the issue regarding maintainability of the suit for not joining all the joint properties at Boalia in the hotchpot of the partition suit, is concerned, particularly when he in substance admitted in the plaint that they had joint properties at Boalia Mouza but these are now not available for partition due to sale thereof by all the co-sharers to the third parties. In view of such pleadings in the plaint, the plaintiff in our view is the best person to disclose the joint properties which they had, and when those properties were sold by all the co-sharers.

In our view, this is a matter of proof by the parties during the trial of the suit. As such we hold that the learned Trial Judge was not justified in striking out the defence of the defendants at this stag. We thus set aside the impugned order and permit the parties to lead evidence on all issues at the time of hearing of the suit.

The appeal is thus, disposed of in the manner as aforesaid, no further order need be passed on the said application. The said application is also disposed of accordingly.We are informed by the learned counsel appearing for the parties that the suit for partition is pending from 2014 and pleadings of the parties are complete. Accordingly, we dispose of this appeal with the hope and trust that the learned Trial Judge will make all endeavour to dispose of the suit at least up to the preliminary decree stage within one year from the date of communication of this order, without granting any unnecessary adjournment to any of the parties. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.

(Jyotirmay Bhattacharya, J)
(Ishan Chandra Das, J)
sm.