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Co-sharers transferring portion in his share of suit property, the purchaser automatically becomes co-sharer by the virtue of purchase : high court of Calcutta

Co-sharers transferring portion in his share of suit property, the purchaser automatically becomes co-sharer by the virtue of purchase : high court of Calcutta

Having regard to the fact that when one of the admitted co-sharers transferred a portion of his share in the suit property, the purchaser automatically became co-sharer by the virtue of purchase. As such, in the absence of those co- sharer the suit for partition cannot be held to be maintainable, is upheld by the high court of Calcutta, by the learned the honourable justice Jyotirmoy Bhattacharjee and the honourable Justice Debi Prasad Dey in the case of S.k Riyasat Ali V. Sk Safiuddin Ahamed and others, F.M.A 1524 of 2015.

 

FACTS

The plaintiff/appellant filed a suit for partition against the defendant describing them as co-sharers in the suit property. After filing the suit, the plaintiff/appellant filed an application under Order 39 Rule 1 & 2 of the Code of Civil Procedure praying for temporary injunction for restraining the defendants from changing the nature and character of the suit property and/or from transferring, alienating and/or encumbering the suit property and/or from disturbing the peaceful possession and enjoyment of the appellant in respect of the ‘B’ schedule property. An ad-interim order of injunction was also sought for by the plaintiff/appellant in similar terms.

The Learned Trial Judge passed an ad-interim order of injunction directing both the plaintiff and the defendant no.1 to maintain status quo as regard ‘B’ schedule property as mentioned in the schedule of the plaint till the next date. The plaintiff was directed to comply with the provision under Order 39 Rule 3 of the Code of Civil Procedure.

Upon receipt of the notice of such ad-interim order of injunction, the defendant no.1 appeared in the said suit and filed an application under Order 39 Rule 4 of the Code of Civil Procedure praying for vacating and/or discharging the ad-interim order of injunction passed by the Learned Trial Judge on the ground that the said defendant transferred 0.0727 acres of land out of 9 decimals of land pertaining to ‘B’ schedule property in favour of Sk. Abtabuddin, Sk. Akbar, Sk. Jiko and Aklima Begum before filing of the said partition suit.

 

JUDGEMENT

 

The Learned Trial Judge held that the injunction is an equitable relief and since the plaintiff has not come with clean hands, the ad-interim order of injunction which was passed, cannot be allowed to continue. Hence, the interim order of injunction passed on 9th March, 2015 was vacated.

The instant appeal is directed against the said order passed by the Learned Trial Judge.

Let us now consider as to how far the Learned Trial Judge was justified in vacating the ad-interim order of injunction in the facts of the instant case.

The court and the order mentioned that the plaintiff filed a suit for partition by joining the defendant nos. 1 and 2 therein as co-sharers in the suit property. It is settled principle of law that the suit for partition cannot be maintained unless all the co-sharers are joined as parties in the suit.

Here is the case where the court found that the defendant no.1 disclosed in his application for vacating the interim order that he had transferred part of his interest in the suit property to four purchasers as named above before filing of the suit. Having regard to the fact that when one of the admitted co-sharers transferred a portion of his share in the suit property, the purchaser automatically became co-sharer by virtue of purchase. As such, in the absence of those co-sharers, the suit for partition cannot be held to be maintainable.

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Judgement reviewed by – Rani Banerjee

Read the judgement here

 

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