S.TALAPATRA,J. - (1.)Heard Mr. G.K. Nama, learned counsel appearing for the appellant as well as Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. A. Sengupta, learned counsel for the respondents.
[2] This is an appeal under sec. 96 of the CPC arising from the judgment and decree respectively dtd. 5/12/2017 and 12/12/2017 delivered in T.S. (P) 35 of 2015 by the Civil Judge (Senior Division), Court No.2, West Tripura, Agartala.

[3] The appellant herein is the plaintiff who instituted the suit seeking partition of the suit land as described in the Schedule of the plaint. For purpose of reference, the said Schedule is reproduced hereunder:

SCHEDULE OF THE SUIT LAND

SCHEDULE-A

In the District West Tripura, Mouja-Agartala sheet No.15, Khatian No. 1623; Tehsil- Agartala, Purba, Revenue Circle-Sadar, Sub-Division-Sadar, District-West Tripura,

Hal Khatian No. 1623.

C.S Plot No. i.e Sabek Plot No. 12348/71719 (Part), 12348/71719(Par); R.S. Plot No. i.e Hal Plot No-36 and 37 classified as Dokan (Nal), Vitti (Nal) land measuring 0.0100 Saharahgsha where 4(four) storied building standing at the premise having 6(six) storied pile foundation.

Bounded and butted by:

North: Akhaura Road

South: Dharitri Chakraborty

East: 6 feet wide Ejmali Road.

West: Smt. Kalpana Rani Saha

Within this boundary land measuring 0.0100 saharangsha where 4(four) storied building (Foundation is for six storied building having pile foundation) measuring 8'ft X 54' ft. standing at the premise situated at Old R.M.S. Chowmuhani.

[4] There is no dispute that by the sale deed No.1-1986 dtd. 28/2/2000 [Exbt.1(A) to 1(E)], the suit land was purchased jointly by the appellant (the plaintiff) and the respondents No. 1 and 2. Since, the said land stood jointly, the plaintiff by institution of the suit, sought for equitable partition of the said land inasmuch as the plaintiff is entitled to get 1/3rd share of the said property. The other coparceners of the said properties are Shri Bimalendu Chakraborty and Shri Sunit Das, respectively the defendants No.1 and 2, the respondents No.1 and 2 herein.

[5] The dispute arose when the petitioner requested the other two coparceners of the said property for separating their shares over the suit land but they refused to amicably partition the said property. Such request was lastly made on 12/10/2014. Thereafter, the plaintiff had instituted the suit urging the trial court to pass a preliminary decree and thereafter to pass the final decree on partitioning the land by metes and bounds by a competent Survey Commissioner. That apart, the plaintiff has also made a prayer that an order be passed by the Court for payment of 1/3rd of the assessed sale value of the building to the plaintiff, if two other shareholders are willing to purchase 1/3rd share of the plaintiff. Alternatively, it has been prayed that if the two other coparceners are unwilling to purchase the 1/3rd share of the plaintiff, the entire building may be sold out by giving the public notice in the local newspapers and the sale proceeds be shared by the plaintiff and the other two coparceners.

[6] The defendants filed the joint written statement by bringing a new fact that the partnership firm was formed on 26/11/2001 under the name and style of M/s. Maa Sarada Devi Industry by the defendants and one Shri Srimanta Majumder. It has been also stated in Para 7 of the written statement that the said partnership firm was dissolved by an agreement dtd. 17/11/2009. By the said agreement, the total value of the assets of the firm was assessed at Rs.1,08,00,000.00, of which the defendant No.1 is entitled to Rs.39,00,000.00, the defendant No.2 is entitled to Rs.40,00,000.00 and Shri Srimanta Majumder is entitled to Rs.25,00,000.00 and it was agreed that Shri Srimanta Majumder will retire from the partnership firm on receipt of the said amount. On these rival pleadings, the trial Judge framed the following issues:

1) Is the suit maintainable in its present form and nature?

2) Has the plaintiff right, title and interest over the suit land?

3) Is the plaintiff entitled to get partition of the suit land as prayed for?

4) To what other relief/reliefs parties are entitled under law and equity?

[7] The plaintiff adduced three witnesses including herself. Besides her, one Shri Ajoy Kumar Paul [PW-2] and one Shri Gouranga Chandra Das [PW-3] were examined during the trial. The plaintiff adduced the following documents in support of her claim:

1) Sale Deed No.1-1986, dtd. 29/2/2000 [in 5 sheets]-Exbt.1(A) to 1(E)

2) Certified copy of Khatian vide No.1623 of Mouja-Agartala Sheet No.15-Exbt.2

3) Certified copy of the written statement of Sunit Das in TS(Counter Claim) 100/2010 arising from TS 54/2010 in 6 sheets-Exbt.3(a) to 3(f)

4) Certified copy of the written statement of Bimalendu Chakraborty in TS (Counter Claim) 100/10 in 6 sheets-Exbt.4(a) to 4(g)

5) Certified copy of the order dtd. 27/4/2015 in TS 54/2010 in 2 pages-Exbt.5(a) to 5(b)

6) Certified copy of deposition of D.W.2 in TS 54/2010 in 3 sheets.-Exbt.6(a) to 6(c).

[8] The defendants have examined one witness i.e. the defendant No. 2 as DW-1. They had also adduced a series of documents viz., 1) Original registered Sale Deed No.1-1986, dtd. 28/2/2000 in 8 sheets-Exbt.A/1 to A/8 2) Certified copy of the Khatian vide No.43890 of Mouja-Agartala Sheet No.15-Exbt.B 3) Certified copy of Chartered Accountant's report filed in TS 54/2010 in 57 sheets-Exbt.C/1 to C/57.

[9] We are at present concerned with one issue i.e. the issue No. 2 whereby it was proposed to examine whether the plaintiff does have the title over the suit land.

[10] After appreciating the materials and the submission of the counsel for the parties, the trial Judge has observed as follows:

"Hence, the suit land to be considered as the property of the firm since this court already observed that the plaintiff fails to prove that the suit land was not purchased from the fund of the partnership firm."

[11] On the basis of that solitary ground, the suit has been dismissed.

[12] Heard Mr. G.K. Nama, learned counsel appearing for the appellant who has quite succinctly stated before us that such finding is not only perverse but also based on absolutely no evidence. On the contrary, by the title deed, it has been proved that the plaintiff has got the title over the suit land along with the defendants No.1 and 2. Further, according to Mr. Nama, learned counsel, the observation that it was burden on the plaintiff to prove that the suit land was purchased from the fund of the partnership firm is grossly illegal. That particular plea was evidently raised by the defendants. The plaintiff never acceded to that the suit land which was purchased in 2000 was from the fund of the partnership firm, as revealed in the written statement. Mr. Nama, learned counsel has pointed out that the partnership firm was formed in 2001 according to the defendants and hence, apparently, there cannot be an occasion of purchasing of the suit land by the partnership firm which did not even come into existence on the day of sale.

[13] From the other side, Mr. S.M. Chakraborty, learned senior counsel appearing for the respondents has referred to the Chartered Accountant's report to show the observation in Para 3 of the report:

"3) Land and Building at Old RMS Chowmuhani with a cost of Rs.21,15,409.20 up to 10/07/2008 was shown in the Balance Sheet of the firm claiming the same to be the asset of partnership. But on verification of the sale deed it was noticed that the land was purchased in the name of two partners namely Bimalendu Chakraborty and Sunit Das with one third person named Puspa Sarkar. As the land was neither in the name of the firm nor in the name of all three partners, the value of the building shown in the Balance Sheet by Sri Sunit Das has not been accepted as the asset of the firm. The cost of the building up to 10/07/2008 was Rs.21,15,409.20 and it has been divided between the partners i.e. Bimalendu Chakraborty and Sunit Das equally and shown in the Capital Account as their drawings from partnership."

[14] Mr. Chakraborty, learned senior counsel, however has fairly submitted that the trial court was absolutely erroneous when held that the burden of proof was with the plaintiff to establish that the land was not purchased from the partnership firm named and styled as M/s. Maa Sarada Devi Industry. Mr. Chakraborty, learned senior counsel has quite correctly submitted that since the plea was raised by the defendants in the written statement, the onus of proving had shifted on them to prove that particular fact based on which they built up their defence.

[15] Having scrutinized the records as relied by the parties in the course of the submission, we find that only question that is material for decision in this appeal is that whether there is any evidence to show that the partnership firm had lien on the land and the building which is situated on the suit land on eclipse of the right of the plaintiff.

[16] Even, from the Accountant's report as relied by the defendants, it clearly surfaces that as the land was neither in the name of the firm nor in the name of all three partners, the value of the building shown in the balance sheet by Shri Sunit Das has not been accepted as the asset of the firm. The cost of the building upto 10/7/2008 was Rs.21,15,409.20 and it has been divided between the partners i.e. Shri Bimalendu Chakraborty and Shri Sunit Das equally and shown in the capital account as their drawings from the partnership.

[17] Even the construction of the building by the said partnership firm has not been accepted by the plaintiff. The unilateral statement, recorded by the accountant in his said report [Exbt.C/1 to C/57] has no value unless accepted by the partners or persons in interest. It has been also admitted in the said report that there is no evidence that the land was purchased by the said partnership firm. That apart, on the face of the registered Sale Deed No.1-1986 dtd. 29/2/2000 [Exbt.1(A) to 1(E) and Exbt.A/1 to A/8], this court does not have any hesitation to hold that the plaintiff has title over the suit land along with the defendants No.1 and 2. As such, the partition suit, instituted at the instance of the plaintiff, is maintainable and the plaintiff is entitled to 1/3rd share of the suit property.

[18] Having observed thus, we have no other option but to set aside the judgment dtd. 5/12/2017 as delivered in T.S.(P) 35 of 2015. We are inclined to allow the suit by issuing a preliminary decree holding that the plaintiff is entitled to 1/3rd share of the entire suit property as described in the Schedule and as reproduced above. That apart, we would direct the parties if is not feasible for them to partition the suit property equitably amongst themselves as a building is standing thereon, they can propose to the plaintiff to transfer her share on accepting the value of 1/3rd of the said building, as proposed by the plaintiff. If the partition is not amicably done, the parties may approach for the final decree. In the result, the appeal stands allowed Draw the decree in terms of above. Send down the LCRs thereafter.

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