DHIRENDRA NATH NATH Vs. MAHADEV NATH & ORS.

JUDGEMENT

(1.) This revision is directed against an order No. 80 dated 5.6.1991 in T.S. No. 99/84 passed by the 2nd Court of the Assistant District Judge, Alipore, 24 -Parganas (S) rejecting the application of defendant No. 7 for amending the preliminary decree. The opposite party No. 1 had instituted the Title Suit No. 99 of 1984 before the 2nd Assistant District Judge, Alipore for partition against the petitioner and the opposite parties Nos. 2 to 8 in respect of "A", "B", "C" and "D" schedule property. The suit was preliminarily decreed on 30th November, 1989 and the petitioner was allotted 1/2 share over 'D' schedule property. In respect of the other properties defendant No. 7 did not claim any interest. The plaintiff/opposite party No. 1 purchased 1/7 share in "A" and 'B' schedule property and 1/14 share in 'D' schedule property. The opposite party nos. 2 to 7 (defendant No. 1 to 6) were allotted 1/ 7 the share each in 'A' and 'B' schedule property and 1/14 share in D' schedule property. Undisputedly 'D' schedule property is a thika tenanted property and the structure was constructed by the predecessors of the petitioner and the opposite parties. Late Panchu Gopal Nath. It is further admitted that the petitioner and the opposite parties are thika tenants in 'D' schedule property under the Zamindar Sasanka Bhusan Saha and others whose interest had vested in the State Government under the Calcutta Thika Tenancy Act, 1.981. After the provision of the aforementioned Act came into force the defendants No. 3 to 7 sold their shares in the structure over the 'D' schedule property to the defendant No. 7/ petitioner by registered sale deed No. 911 dated 27th July 1990. Defendant/ opposite party No. 2 sold his l/14th share in the structure over 'D' schedule property to the petitioner by registered sale deed dated 1st November, 1990. Thus, the petitioner claimed to have acquired ownership of 13/ 14th share of 'D' schedule property and the remaining l/14th share belongs to the opposite party No. 1/plaintiff. Following the aforementioned purchase the petitioner is said to have filed an application for amending the preliminary decree inconformity with the purchase deeds over 13/14 share of the suit schedule 'D' property.

(2.) The plaintiff/opposite party No. 1 filed a written objection before the Trial Court, inter alia, pleaded that the transfer of thinka tenant land being prohibited in law, even such transfer had taken place, those would not convey any title in favour of the defendant No. 7. The learned trial court considering the prohibition of transfer of thika tenanted land under Sec. 6 of Calcutta Thika Tenancy (Agriculture and Regulation) Act, 1981 rejected the prayer of the revisionist.

(3.) Dr. Mondal, the learned counsel appearing for the revision petitioner, has advanced several contentions in support of the revision. He maintained that a preliminary decree could be amended subsequently taking into consideration of inter -vivos transfer. In this case, the defendant No. 7 purchased the interest of the other defendants under the strength of various sale deeds. So far as the amendment of preliminary decree for partition is concerned; it is depended on several factors, such as transfer of interest, inheritance, fluctuation of share likewise. Had it been an ordinary transfer, there could have been no legal inhibition for the amendment of the preliminary decree. But so far as the transfer of thika tenanted land is concerned the opposite party/plaintiff has taken a formidable stand that since such transfer is prohibited under the provision of Calcutta Thika Tenancy Act, the defendant No. 7 therefore, does not acquire any title. While examining the said contention it is necessary to quote the provision of Sec. 6 of the Act.