KARTICK CHANDRA MANDAL versus NETAL MONDAL (DEAD) BY LRS. AND ORS.

Citation: [2009] 1 S.C.R. 8 · Decided: 06-01-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 1 S.C.R. 8 
A 
KARTICK CHANDRA MANDAL 
v. 
NET Al MON DAL (DEAD) BY LRS. AND ORS. 
(Civil Appeal No. 8 of 2009) 
B 
JANUARY 6, 2009 
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM 
SHARMA, JJ.] 
• 
Code of Civil Procedure, 1908: 
-C 
s. 100 - Second appeal arising out of suit for declaration 
of title and for possession - Suit based on partition amongst 
co-sharers - Date of partition claimed to be a relevant issue 
- High Court without forming any question of law on the issue 
D decided the appeal - Issue formulated by Supreme Court -
Matter remitted to trial court to decide the suit afresh 
expeditiously - Practice and Procedure - West Bengal Land 
Reforms Act, 1955 - s.14. 
In the instant appeal filed by the plaintiff against the 
E judgment of the High Court in a second appeal arising 
out of the suit for declaration of title and for possession 
based on partition amongst co-sharers, it was contended 
for the appellant that though the date of partition was 
relevant for decision of the second appeal, but the High 
" 
F Court without formulating "'ny question of law on the 
• 
issue held that from the facts and circumstances it was 
not clear that partition, if any, did not take place prior to 
introduction of s.14 of the West Bengal land Reforms Act, 
1955. 
G 
Allowing the appeal and remitting the matter to the 
trial Court, the Court 
HELD: The trial Court shall hear the suit afresh on 
H 
8 
• 
KARTICKCHANDRA MANDAL v. NETAI MONDAL (DEAD) 
9 
BY LRS. & ORS. 
' 
the issue, "What is the date of alleged partition between 
A 
the plaintiff and original defendant No.3?" and decide the 
same in accordance with law. The parties shall be 
permitted to place evidence in support of their respective 
stand. [Paras 9 and 1 O] [13-A-C] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8 B 
of 2009. 
From the final Judgment and Order dated 19.8.2005 of the 
High Court of Calcutta in S.A.No. 117 of 2003. 
c 
Chanchal Kumar Mitra and Gaurav Agrawal for the 
Appellant. 
Partha Pratim Chaudhari, M. Musa, Aditya Sharma and 
K.S. Rana for the Respondents. 
D 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT, J. 1. Leave granted. 
2. Challenge in this appeal is to the judgment of a learned 
E 
Single Jud_ge of the Calcutta High Court allowing the Second 
Appeal.filed by the respondents under Section 100 of the Code 
of Civil Procedure, 1908 (in short the 'CPC'). 
~ 
3. The appellant as plaintiff filed a suit for declaration of 
-
- title and recovery of khas possession and also of permanent 
F 
injunction contending inter-alia that the suit land in R.S. Khatian 
No.31 of Mouza Chandibera under P.S. Rajarhat originally 
belonged to Ananda Chandra Monda!, Mubir Monda!, Bhutnath 
Monda!, Gadadhar Monda!, Mathar Monda!, Kartick Monda!, 
.I. 
Haradhan Chandra Ghosh and Bishwanath Ghosh. While they 
G 
were in joint possession in same for convenience of 
...,.. 
possession they made an amicable partition amongst 
themselves and in that partition plaintiff and proforma 
defendant No.3 got 12 decimals of land in plot No.223/455 
• 
which was described in schedule A of the plaint. Subsequently, 
H -
10 
SUPREME COURT REPORTS 
(2009) 1 S.C.R. 
A by an amicable partition between the plaintiff and proforma 
defendant No.3, plaintiff got B schedule property, that is to say, 
6 decimals of land at the southern portion of the aforesaid suit 
property and proforma defendant No.3 got 6 decimals of land 
at the northern portion of the suit plot. In this way, plaintiff got B 
B schedule of land and C schedule of land fell in the share of pro-
defendant no.3. Thereafter, as per the case of the plaintiff by 
way of an oral exchange, defendants 1 and 2 got C schedule 
property from proforma defendant No.3 and they started 
residing thereon by constructing house. B schedule of land was 
C lying vacant. Plaintiff was in possession of that land by 
cultivation. Defendant Nos.1 and 2 threatened the possession 
of the plaintiff. In that background, the plaintiff filed the suit 
originally for permanent injunction against defendants 1 and 2. . 
Subsequently, it was contended by the plaintiff that defendant 
Nos.1 and 2 dispossessed the plaintiff from the suit property 
D and, therefore, the plaintiff prayed for recovery of possession 
of such property. Defendant Nos.1 and 2 contested the suit by 
a written statement alleging inter-alia that the plaintiff was all 
along since the date of partition remained separately in his own 
allotted land and t

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