MOULI BHUSAN BHATTACHARJEE Vs. SWARUP BHATTACHARJEE

JUDGEMENT

(1.) This appeal is directed against the judgment dtd. 13/6/2011 passed by the learned Civil Judge (Senior Division), Court No.2, Agartala in Title Suit No.78 of 2001 issuing a preliminary decree for partitioning the suit land.

(2.) The facts of the case in brief, as pleaded by the plaintiff-appellant, are that the late Bidhu Bushan Bhattacharjee, who died intestate on 26/4/1949, was his father and was survived by him, his mother, namely, Suniti Bala Devi (who has also died), his two other sons, namely, the original defendant No.1 [(on his death substituted by the respondent No.1(b) and (c)] and the defendant-respondent No.2, and four daughters, namely, (i) Smt. Nisa Rani Bhattacharjee (now dead), (ii) Smt. Gouri Rani Bhattacharjee (also dead), (iii) the defendant-respondent No.3 and (iv) the defendant-respondent No.5. The father of the appellant is the owner of the suit land and was having exclusive physical possession of the suit land by constructing a dwelling house in a portion thereof, by maintaining a tank and by cultivating the nal land for paddy and by enjoying the usufruct thereof without any interference from any quarter till his death. As the parties belong to Dayabhaga School, the devolution of interest in the property of the father of the appellant is to be governed and regulated by Dayabhaga School of Hindu Law. The said Nisa Rani Bhattarcharjee died unmarried, whereas Gouri Rani Bhattarchajee (now dead) and the respondent Nos.3 and 5 did not inherit any property of the father of the appellant as per Dayabhaga system of Hindu Law when the succession issue was opened and only the mother of the appellant, the late Suniti Bala Devi became entitled to life estate in the share of the property of her deceased husband (father of the appellant) under Sec. 3(3) of the Hindu Women's Right to Property Act, 1937 ("Property Act" for short). Thus, after the death of the father of the appellant, the father of the defendant-respondent Nos.2(b) and (c) and the respondent No. 2 and their mother (Suniti Bala Devi) became owners of the suit land in equal share to the order of ¼ share thereof. The said Suniti Bala Devi (mother of the appellant) died in the year 1961 after the coming into force of the Hindu Succession Act, 1956 ("the Succession Act" for short) with the result that her limited right to the suit land became absolute ownership by the operation of Sec. 14 of the Act. Consequently, the appellant, the defendant Nos.1 and 2 and their mother became the full owners of the suit land in equal share to the extent of ¼ each. The mother died intestate in the year 1961 whereupon her right to and interest in her share of 1/4 devolved upon the appellant, the original defendant Nos.1, 2, 3 and 6 and upon the defendant Nos.4 and 5, being the legal heirs of the said Gouri Rani Bhattacharjee. The respective shares of the parties are as follows:

(3.) In the month of June, 2001, the original defendant No.1 started construction of a building on the suit land without partition by occupying its valuable portion as per his choice despite vehement objection by the appellant, who had time and again requested him to make partition of the suit land by metes and bound and construct a building only on the share to be allocated to him after the partition, but the said defendant No.1 refused to do so and continued his construction activities almost by force. As the appellant was not interested in litigation, he took the initiative with the help of local influential people to amicably partition the suit land. Just after laying the foundation of the building by the defendant No.1, at the instance of the appellant, a meeting was arranged on the suit land and the participants in that meeting requested the defendant No.1 to stop the construction till the suit land was partitioned among the co-sharers by metes and bounds, but the efforts proved futile. On 19/7/2001, the appellant received copies of the caveats lodged by the said defendant in two civil courts wherein he had stated that he learnt from a reliable source that the appellant would institute a suit and claimed to be heard before issuing any interim order. On receiving these caveats, the appellant came to realize that no amicable settlement of their dispute was likely to succeed and, therefore, decided to institute this suit. The said defendant is occupying the front portion of the suit land on the western side of the National Highway and started to forcibly construct a commercial building without partitioning the suit land. On the death of his father, the appellant is entitled to a share of 29.17% on the suit land and is, therefore, entitled to a decree for partition of the suit land by declaring him as the owner of the suit land to the extent of 29.17% share. It was under the aforesaid circumstances that the suit has been instituted by the original plaintiff.