Decided on December 06,1996

Moothedath G. Jaipalan And Anr. Appellant
Sanjit K. Roy And Ors. Respondents


Basudev Panigrahi, J. - (1.)The appeal is against the judgement and decree passed to Title Appeal No. 866.86 affirming the final decree dated 26th August 1985 of the Sub -ordinate Judge, 3rd, Court. Alipore in Title Suit No. 124/67. Essential facts leading to the present appeal are as follows :
Rai Bahadur Dr. Chandra Kanta Chakraborty was the original owner who purchased 6 cottahs 15 chittaks 41 sq. ft. of land in premises No. 65. Rash Behari Avenue, Calcutta -27 from the Calcutta Improvement Trust. He gifted a specified portion and delineated 2 cottahs 2 chittaks 16 sq. ft. within the boundary line with frontage on Rash Behari Avenue to his daughter -defendant No. 3 Smt, Charu Bala Devi since dead, which was separately marked and renumbered by the Corporation of Calcutta as 65B, Rash Behari Avenue. The remaining land measuring 4 cottahs 13 chittaks 25 sq. ft. a vacant plot of land, was subsequently marked and renumbered as premises No. 65A, Rash Behari Avenue, which is now covered under the suit. Smt. Charu Bala Devi, the defendant No. 3 (since deceased) subsequently constructed a 4 storied building on the premises No. 65B which she had received from her father -original owner, according to a building plan sanctioned jointly for her land and also for the suit premises No. 65A, Rash Behari Avenue. Before proceeding with any construction as per the sanctioned plan on premises No. 65A, Rash Behari Avenue the original defendant No. 1 Saroj Chandra Sen, (substituted by the appellant had persuaded the original owner for letting -out the premises No. 65A, Rash Behari Avenue for the purpose of storing building materials with the assurance to vacate the same whenever required by the original owner at a monthly rental of Rs. 40/ - according to English Calender month. Since he already occupied a portion from the premises No. 65B, Rash Behari Avenue as a tenant under the defendant No. 3. Subsequently when the defendant No. 1 had declined to vacate the suit premises on demand by the original owner, an ejectment suit bearing T.S. No. 245/47 was instituted in the 1st Court of Munsif at Alipore after terminating the tenancy of the original defendant No. 1 in the suit premises. The said suit was decreed in favour of the original owner and no appeal was filed against the judgment and decree of ejectment by the defendant No. 1. In the meantime, the original owner died leaving behind his 8 sons who inherited the suit premises in equal shares. Since the defendant No. 2 was living separately from his father and he sold away his 1/8th share in the suit premises to the husband of the original defendant No. 3 Smt. Charubala Devi the defendant No. 2 thereafter did not possess any interest The defendant No. 1 with a view to delaying and defeating the purpose of the said decree of ejectment in the T.S. No. 245/47 and the Title Execution Case No. 122 of 1950 raised katcha structures and let out the structures to different tenants, he also lodged a Misc. Case under Sec. 47 of the C.P. Code and T.S. No. 80 of 1957 in the Court of learned 2nd Sub -ordinate Judge for declaration that he was a thika tenant and the previous judgment and decree in ejectment suit was a nullity and the defendant No. 1 lost in Misc. Case as well as the suit. Thereafter, the defendant No. 1 filed the Misc. Case No. 2953 under Sec. 5(2) of the Calcutta Thika Tenancy Ordinary of 1952 before the local 1st Court of Munsif and secured the order on 11.2.56 setting aside the previous decree of ejectment and consequently declaring the execution proceeding to be unenforceable in law. The said ejectment suit was subsequently converted into Misc. Case No. 54 of 1956 in the Court of the 1st Munsif at Alipore. During the pendency of the said Misc. Case the defendant No. 1 purchased 1/7th share of Subodh Kumar Chakra -borty the youngest son of original owner and thus he became the co -sharer to the extent of 1/7th Share. In the meantime, Sri Sarojit Kumar Chakraborty another son of the original owner, died as a result of which the 7 sons of the original owner inherited his 1/7th share and therefore, their share was little augmented. The defendant No. 2 after the safe of his 1/8th share to the husband of defendant No. 3 acquired l/56th share in the suit premises. In the above manner, the plaintiffs also acquired 5/7th share covering 3 cottahs 7 chittaks 17.6/7 sq. ft. out of 1 cottah, 6 chittaks and 8 sq. ft. the defendant No, 1 had 1/7th share, the defendant No. 21/56th share and defendant Nos. 3 to 5 jointly had 1/8th share. When the defendants did not agree to amicable partition of the suit premises the plaintiffs were, obliged to file the present suit for partition by metes and bounds.

(2.)The defendant No. 1 and the defendant Nos. 3 to 5 had filed two sets of separate written statement. The defendant Nos. 3 to 5 in their joint written statement had supported the plaintiffs case; admitted the respective shares of the parties and denied the alleged Thika Tenancy Right of the defendant No. 1. The defendant No. 1 in his written statement has, inter alia, stated that the partition suit was not maintainable unless his Thika Tenancy Right is extinguished by law or by the acts of the parties according to the provisions of law; that the defendant's uncle Sri R.C. Sen after taking Thika Tenancy from the original owner had constructed as many as 12 structures over the premises with the implied consent of the original owner whereafter this defendant No. 1 took settlement of the land of the suit premises with Thika Tenancy Right from the original owner and continued to possess the structures raised by his uncle Sri R.C. Sen.
(3.)With the above pleadings, the parties were led to trial. The 1st Subordinate Judge, 3rd Court at Alipore by the preliminary decree declared the respective shares of the parties. The defendant No. 1 thus, allowed judgment and decree passed by the trial Court as final and conclusive without filing any appeal. Thereafter, the plaintiffs filed an application for passing of the final decree in terms of the preliminary decree. In the aforesaid final decree proceeding a partition commissioner was appointed who affected the division of the properties and separately allotted different shares in terms of the preliminary decree and submitted his report. The learned trial Court passed the final decree accepting the Commissioner's report. The defendant No. 1 preferred an appeal in T.S. No. 866/85 in the Court of the District Judge, Alipore which was eventually transferred to Additional District Judge. 11th Court, Alipore. That too was dismissed. Thus, being aggrieved by both the judgments passed by the trial Court as well as the Appellate Court, the defendant has approached this Court by filing the 2nd appeal.

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