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Until the partition is affected by a registered deed there can be no partition in accordance with the law : High Court of Calcutta

 

Until the partition is affected by a registered deed there can be no partition in accordance with the law : High Court of Calcutta

There is no two opinion on the position of law that if status prohibits partition of a particular class of property Except by way of registered document then unless partition is affected by a registered deed there can be no partition in accordance with law even if the parties actually made oral partition. In such a case, If the co sharer remain in occupation of a particular demarcated portion by such mutual arrangement for such arrangement there an demarcated interest in the plot is not extinguished. In the eye of law they remain Co sharer so long there is no registered deed of partition notwithstanding the fact that each of the Co sharers are in occupation of a particular demarcated portion, was upheld by the High Court Of Calcutta, by the learned bench of The Honourable Justice Sidhartha Chattopadhyay, in the case of Biswanath Dolui V. Tinkari Dolui, C.O. No. 2207 of 2014.

FACTS

The petitioner had filed an application under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955, against the opposite party for preemption in respect of 50 decimals of land out of three plots being 19 decimals out of Plot No. 1431 measuring 1 Acre 14 decimals and 29 decimals out of Plot No. 1431, comprising 1 Acre 76 decimals and 02 decimals out of Plot No 1431/2331, comprising 9 decimals and his such application was registered as L.R. Miscellaneous Case No. 1 of 2007.

 Gobordhan Kumar who died leaving behind his two sons Harsha Bardhan Kumar and Shyamal Kumar along with his wife Sabitri Rani Kumar and two daughters Maya Rani Ghosh and Mamata Hazra. According to him, schedule ‘Ka’ to the plaint initially belonged to Harsha Bardhan Kumar who died issueless leaving behind his wife Smt. Baby Kumar as his only legal heir and successor. Subsequently, said Sabitri Rani Kumar died leaving behind his son Shyamal Kumar and two daughters Maya Rani Ghosh and Mamata Hazra as her legal heirs. Shiba Prasad Kumar gifted his 1 Acre 21.2/3 decimals of land of Plot Nos. 1431, 1432 by registered deed of gift being Plot No. 4344 for the year 1998 in favour of his son Nemai Kumar and delivered possession to him.

 Santosh Kumar died before passing of Hindu Succession Act leaving behind his wife Sudha Rani Kumar, who on 30.03.1963 sold her inherited property in favour of Harsha Bardhan Kumar and Shyamal Kumar in respect of the Plot No. 1431, which was previously Danga in nature and area of this was land 1 Acre 28 decimals. The said Plot No. 1431 measuring 1 Acre 16 decimals recorded as bank of a tank and the rest 12 decimals has been recorded as Bata Plot No. 1431/2331 at the time of R.S.R.O.R. The petitioner claims to have his bargadarship for the last 40 years and his name has been recorded in R.S.R.O.R. as ‘bargadar’. The petitioner has developed the Plot Nos. 1431and 1432 to a great extent. Thereafter, the owner of the suit plots decided to sale the suit property and against that the present petitioner instituted a Title Suit bearing No. 20/1998 and obtained the order of injunction. Defendants of that suit sought for preemption to sale out his share in the suit property and the petitioner purchased the same having preferential right and by such purchase the petitioner had become co- sharer in the suit plot. It is also specifically averred that he has the longest common boundary with the suit property.

Suddenly on 31.01.2007 he came to know that the opposite party has purchased the ‘Kha’ schedule property from Baby Kumar. After a thorough search from Registry Office, he came to know that it was registered in 2006. According to him, only a sum of Rs. 10,000/- (Rupees Ten Thousand Only) was paid for the said plot but the opposite party in collusion with his vendor showed an inflated price of Rs. 1,60,000/- (Rupees One Lakh Sixty Thousand Only) only to deprive the present petitioner.

 It appears from the record that opposite party contested in the said case and has tried to establish the other side of the shield. According to him, Baby Kumar, has sold her entire property and the present petitioner knows about the sale and he was offered to purchase the suit land but he refused. On the contrary, he has taken a sum of Rs. 10,000/- (Rupees Ten Thousand Only) as brokerage.

JUDGEMENT

The court upheld that the  ratio of the judgment would be that the “co-sharer of a raiyat in a plot of land” means a person other than the raiyat, who has an un-demarcated interest in the plot of land along with raiyat. The court stated that it has been established that there is no registered deed of partition between the parties. There is no two-opinion on the position of law that if statue prohibits partition of a particular class of property except by way of registered document, then unless partition is effected by a registered deed there can be no partition in accordance with law even if, the parties actually made oral partition. In such a case, if the co-sharers remain in occupation of a particular demarcated portion by such mutual arrangement, for such arrangement their un-demarcated interest in the plot is not extinguished. In the eye of law, they remain co-sharer so long there is no registered deed of partition notwithstanding the fact that each of the co-sharers are in occupation of a particular demarcated portion. Therefore, so long there is no partition in accordance with the provisions contained in Section 14 of the Act, the parties remain as a co-sharers of those plots of land and have un-demarcated interest in the entire plot in question.

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Judgement reviewed by – Rani Banerjee

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