PARITOSH KUMAR BASU Vs. SANDHYA BASU

JUDGEMENT

(1.) This second appeal arises out of a judgment and decree of reversal passed by the lower appellate Court whereby the learned judge in First Appellate Court set aside the judgment and decree passed by the trial court in a suit for partition and permanent injunction.

(2.) One Monotosh Kumar Basu, predecessor-in-interest of the present appellant filed a suit for partition and permanent injunction against the defendant/appellant in the 1st Court of the learned Civil Judge (Senior Division) at Barasat which was registered as Title Suit No.171 of 2004. It was the case of the plaintiff that the father of the parties, namely, Srish Chandra Basu, since deceased, was the recorded owner of a piece of property mentioned in detail in schedule A to the plaint. By virtue of a registered deed of gift dated 15th March, 1976, the said Srish Chandra Basu transferred entire 'A' schedule property in equal share to the plaintiff and defendant. Both of them accepted the said gift and they are in joint possession of the said property. The plaintiff further pleaded that by virtue of a registered deed of sale, he and the defendant jointly purchased 2.5 decimal of land from one Ranu Bhattacharya on 10th March, 1975. The said property is described in schedule 'B' to the plaint and mentioned hereafter as 'B' schedule property. Since the date of their purchase, both the plaintiff and defendant has been possessing 'B' schedule property jointly. Since the date of death of their father, the parties are separated in mess. The plaintiff alone spent money for maintenance of the building situated on the suit property. He alone has been paying electricity charges etc. Therefore, the requested the defendant to effect amicable partition of the suit property, but the defendant flatly refused such proposal. So, the plaintiff filed Title Suit No.171 of 2004 for partition and other consequential reliefs.

(3.) The defendant contested the suit by filing written statement. Specific case of the defendant is that he has no right, title and interest over B schedule property. The defendant claimed to be absolute owner of 'B' schedule property because he paid entire consideration money to purchase the said property out of his own fund. However on the date of registration of sale deed in respect of 'B' schedule property, the defendant was very much busy for medical treatment of his sister's husband and requested the plaintiff, being his elder brother to make arrangement for registration of the deed of sale of the said property. Taking advantage of his absence, the plaintiff cleverly inserted his name as one of the copurchasers of 'B' schedule property in the deed of sale. When such illegal and fraudulent act of the plaintiff came to the knowledge of the defendant, he enquired into the matter and the plaintiff made a declaration in writing admitting his unlawful act and further declaring that he had no right, title and interest over 'B' schedule property. The original deed of sale is in custody of the defendant all along since the date of his purchase. In respect of 'A' schedule property, the defendant pleaded that though the father of the parties transferred the said property to his both sons, it was never intended by the donor that the donees would effect partition of 'A' schedule property. All other allegations made out against him in the plaint were denied.