Holding

The trial court must hear the suit afresh and determine the date of the alleged partition, as it is a factual issue, and the High Court's decision was erroneous.

Summary

The plaintiff filed a suit for declaration of title, possession and permanent injunction based on an alleged amicable partition of land among co‑sharers. The High Court, on a second appeal under CPC s.100, decided that the partition, if any, did not occur before the commencement of Section 14 of the West Bengal Land Reforms Act, 1955, without formulating any question of law. The Supreme Court held that the date of partition is a factual issue, not a question of law, and the High Court erred by deciding it on the basis of conjecture. Consequently, the matter was remitted to the trial court to determine afresh the date of the alleged partition between the plaintiff and the original defendant No.3. The trial court was directed to allow the parties to adduce evidence and to dispose of the suit by May 2009. The appeal was allowed in this limited scope.

Issues considered

Whether the learned judge erred in law by misappreciating the scope of the suit for declaration, injunction and possession in the absence of a valid partition.
Whether the learned judge erred in law by declaring title and possession rights of the plaintiff when all parties were co‑sharers without a valid partition.
Whether the learned judge erred in law by dismissing the appeal on the ground that any partition after the commencement of Section 14 of the West Bengal Land Reforms Act, 1955 must be by registered instrument or court decree.
What is the date of the alleged partition between the plaintiff and original defendant No.3?

Legislation cited

Code of Civil Procedure, 1908s. 100
West Bengal Land Reforms Act, 1955s. 14

Subjects

partition of co‑sharersland reformsSection 14 West Bengal Land Reforms ActCPC Section 100second appealdeclaration of titlepossessioninjunctionquestion of law vs factual issue

Judgment

[2009] 1 S.C.R. 8

A KARTICK CHANDRA MANDAL
v.
NETAl MON DAL (DEAD) BY LRS. AND ORS.
(Civil Appeal No. 8 of 2009)
JANUARY 6, 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
•
Code of Civil Procedure, 1908:
-C
s. 100 - Second appeal arising out of suit for declaration
of title and for possession - Suit based on partition amongst
co-sharers - Date of partition claimed to be a relevant issue
- High Court without forming any question of law on the issue
decided the appeal - Issue formulated by Supreme Court -
D
Matter remitted to trial court to decide the suit afresh
expeditiously - Practice and Procedure - West Bengal Land
Reforms Act, 1955 - s.14.

In the instant appeal filed by the plaintiff against the
E judgment of the High Court in a second appeal arising
out of the suit for declaration of title and for possession
based on partition amongst co-sharers, it was contended
for the appellant that though the date of partition was
relevant for decision of the second appeal, but the High "
F Court without formulating "'ny question of law on the •
issue held that from the facts and circumstances it was
not clear that partition, if any, did not take place prior to
introduction of s.14 of the West Bengal land Reforms Act,
1955.
G
Allowing the appeal and remitting the matter to the
trial Court, the Court

HELD: The trial Court shall hear the suit afresh on

H 8

•
KARTICKCHANDRA MANDAL v. NETAI MONDAL (DEAD) 9
BY LRS. & ORS.

the issue, "What is the date of alleged partition between A
'
the plaintiff and original defendant No.3?" and decide the
same in accordance with law. The parties shall be
permitted to place evidence in support of their respective
stand. [Paras 9 and 1O] [13-A-C]
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8
of 2009.

From the final Judgment and Order dated 19.8.2005 of the
High Court of Calcutta in S.A.No. 117 of 2003.
c
Chanchal Kumar Mitra and Gaurav Agrawal for the
Appellant.

Partha Pratim Chaudhari, M. Musa, Aditya Sharma and
K.S. Rana for the Respondents.
D
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
Single Jud_ge of the Calcutta High Court allowing the Second E
Appeal.filed by the respondents under Section 100 of the Code
of Civil Procedure, 1908 (in short the 'CPC').

- ~
3. The appellant as plaintiff filed a suit for declaration of
- title and recovery of khas possession and also of permanent F
injunction contending inter-alia that the suit land in R.S. Khatian
No.31 of Mouza Chandibera under P.S. Rajarhat originally
belonged to Ananda Chandra Monda!, Mubir Monda!, Bhutnath
Monda!, Gadadhar Monda!, Mathar Monda!, Kartick Monda!,
.I. Haradhan Chandra Ghosh and Bishwanath Ghosh. While they G
were in joint possession in same for convenience of
...,.. possession they made an amicable partition amongst
themselves and in that partition plaintiff and proforma
defendant No.3 got 12 decimals of land in plot No.223/455
• which was described in schedule A of the plaint. Subsequently, H -
10 SUPREME COURT REPORTS (2009) 1 S.C.R.

A by an amicable partition between the plaintiff and proforma
defendant No.3, plaintiff got B schedule property, that is to say,
6 decimals of land at the southern portion of the aforesaid suit
property and proforma defendant No.3 got 6 decimals of land
at the northern portion of the suit plot. In this way, plaintiff got B
B schedule of land and C schedule of land fell in the share of pro-
defendant no.3. Thereafter, as per the case of the plaintiff by
way of an oral exchange, defendants 1 and 2 got C schedule
property from proforma defendant No.3 and they started
residing thereon by constructing house. B schedule of land was
C lying vacant. Plaintiff was in possession of that land by
cultivation. Defendant Nos.1 and 2 threatened the possession
of the plaintiff. In that background, the plaintiff filed the suit
originally for permanent injunction against defendants 1 and 2. .
Subsequently, it was contended by the plaintiff that defendant
Nos.1 and 2 dispossessed the plaintiff from the suit property
D and, therefore, the plaintiff prayed for recovery of possession
of such property. Defendant Nos.1 and 2 contested the suit by
a written statement alleging inter-alia that the plaintiff was all
along since the date of partition remained separately in his own
allotted land and the defendants also were possessing the land
E and structure according to their own share on the portion allotted ,
to them. In this background, they denied the allegation of
dispossession from the suit property made by the plaintiff. It was
the further allegation of the contesting defendants that the total
land were amicably partitioned amongst themselves by the
F intervention of the members of the gram Panchayat as per the
family arrangements. The parties were separated in respect of
the possession of th~ land in dispute and the contesting
-
defendants after getting the plan sanctioned, constructed the
building over the allotted land. The plaintiff was not entitled to
G get a decree as prayed for. J..
4. Learned Munsiffformulated several issues and relied on
certified copy of the decreed suit. The first Appellate Court has
also upheld the view of the trial Court. The Second Appeal was
H admitted with the following questions of law:
KARTICK CHANDRA MANDAL v. NETAI MONDAL (DEAD) 11
BY LRS. & ORS. [DR ARIJIT PASAYAT, J.]

(i) Whether the learned Judge in the courts below A
' substantially erred in law in completely misleading,
.> misconstruing and misappreciating the scope of the suit
for declaration, injunction and recovery of possession
between the co-sharers in the absence of any legal and
valid partition and erroneously decreed the suit on a B
misconception of law?

(ii) Whether the learned Judge in the courts below
substantially erred in law in decreeing the suit by declaring
that the plaintiff/respondent No.1 has right, title and interest
in respect of 'B' schedule suit property and for recovery of c
possession of the said property by evicting the appellants
therefrom inasmuch as the learned Judge in the courts
below have failed to appreciate that all the parties to the
proceeding are co-sharers having joint share in the suit
property and as such before valid partition neither of the D
co-sharers could be directed to vacate some portion of the
joint property?

(iii) Whether the learned Judge in the courts below
substantially erred in law in dismissing the appeal on a E
misconception of law inasmuch as per the provision of
Section 14 of the West Bengal Land Reforms Act, 1955
any partition among the co-sharers other than by a
registered instrument or by a decree or order of a Court
• is not partition at all and in absence of any valid partition F
among the parties, the plaintiff/respondent No.1 cannot
claim for injunction to prevent other co-sharers from
enjoying joint share in the property.

5. The High Court answered question No.3 in favour of the
• present respondents and it held that the partition, if any, did not G
take place prior to the introduction of Section 14 of the West
.,. .
Bengal Land Reforms Act, 1955 (in short the 'Act') .

· 6. Learned counsel for the appellant submitted that there
was no dispute regarding the date of partition. In fact, no issue H
12 SUPREME COURT REPORTS [2009] 1 S.C.R.
~

A was framed. In the plaint there was a specific assertion with
reference to the R.S.R.O.R. which undisputedly is of the year '
1955. Though the defendants filed written statement there was
no challenge to the authenticity of the R.S.R.O.R. Though the
'
High Court noted that there was an admission strangely it came
B to hold that the admission was as regards the point of law and,
therefore, decided the appeal in favour of the respondents.

7. Learned counsel for the respondents, on the other hand, ,.
.I-

supported the judgment of the High Court and submitted that
though it appeared that there was no specific issue relating to
c the date of partition there was denial as regards the factum of
partition as claimed.

8. The High Court noted that the section came into force _
-
in West Bengal w.e.f. 7.6.1965 except in the areas transferred
D from Bihar to West Bengal. Therefore, after the introduction of
the aforesaid provision the partition of a holding can be
effective only by registered instrument or by decree or order of
a Court. There is no dispute so far as this aspect is concerned.
As rightly contended by learned counsel for the appellant there
E was specific averments in the plaint as regards the partition
which refers to R.S.R.O.R. Though, there was no date of
partition indicated, a reference was made to the aforesaid
document. The High Court after having noted that none of the
parties made any endeavour to ascertain when the. actual
"
F alleged partition took place came to an abrupt conclusion that
from the facts and circumstances it was clear that the partition,
if any, did not take place prior to the introduction of Section 14
of the Act. The basis for coming to such a conclusion is not
clear. Further, the conclusion of the High Court that though there
may have been admission that related to the question of law
G
is equally unsustainable. What is the date of partition is not a ..
-,...
question of law. .,
9. In the circumstances, we set aside the impugned
judgment of the High Court and remit the matter to the trial Court
H
KARTICK CHANDRA MANDAL v. NETA! MONDAL (DEAD) 13
BY LRS. & ORS. [DR ARIJIT PASAYAT, J.]

to formulate the following issues: A
What is the date of alleged partition between the plaintiff
and original defendant No.3;

The parties shall be permitted to place evidence in support
of their respective stand. B

10. The trial Court shall hear the suit afresh on the aforesaid
.. issue alone and decide the same in accordance with law. Since
the matter is pending since long, we request the trial Court to
dispose of the matter by the end of May, 2009. c
11. The appeal is allowed to the aforesaid extent.

R.P. Appeal allowed.