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Probhat Kumar Mukherjee Vs. Santi Ranjan Banerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 289 of 1955
Judge
Reported inAIR1957Cal375,61CWN553
ActsStamp Act, 1899 - Sections 2(15) and 35 - Schedule - Article 45
AppellantProbhat Kumar Mukherjee
RespondentSanti Ranjan Banerjee
Appellant AdvocateR. Baksi and ;Hari Prasanna Mukherjee, Advs.
Respondent AdvocateSambhu Nath Banerjee, Adv.
Cases ReferredJatindra Mohan Tagore v. Bijoy Chand Mahatap
Excerpt:
- .....they relate to the subject-matter of the suit. court-fee on plaint is sufficient. ordered that the suit be decreed finally on compromise in terms of solenama which do form a part of the decree.' 6. although an order was passed finally decreeing the suit in terms of the compromise petition on the 11th august, 1950, it is an admitted fact that no final decree has been engrossed on a requisite stamped paper at least till the time of the decision of the suit in the courts below, because no stamped paper was filed by the parties in court for the purpose of formally drawing up the decree. an order of the court of the subordinate judge in the partition suit which is dated the 18th april, 1952 would show that haridasi debi who had filed a petition for passing the final decree did net press that.....
Judgment:

Renupada Mukherjee, J.

1. An interesting question of law has arisen in this Second Appeal, namely, whether a legal title accrues in favour of a party in respect of a property which he has got under a petition of compromise filed by the interested parties in a suit for partition where no final partition decree has been engrossed on the requisite stamped paper as required by the Stamp Act.

2. An order to understand how this question of law has arisen, it is necessary to state only the following facts. Respondent Santi Ranjan Banerjee was inducted in a portion of premises No. 14, Iswar Ganguli Street by the appellant at a monthly rent of Rs. 10/- which was subsequently raised to Rs. 11/-. The appellant brought a suit for ejectment against the respondent alleging that the respondent had made defaults on three occasions of two consecutive months each within a period of 18 months prior to the institution of the suit. A further ground for ejectment made by the appellant was that the premises in the occupation of the respondent were reasonably required for the accommodation of the appellant and other members of his family because the existing accommodation was not sufficient for their requirement.

3. The defence of the defendant was that the mother of the plaintiff and not the plaintiff was the landlord of the premises and that the allegations about default and reasonable requirements were unfounded. The learned Munsif whotried the suit framed necessary issues which arose upon the pleadings and by overruling all the objections put forth on behalf of the defendant he passed a decree for ejectment in favour of the plaintiff.

4. An appeal was preferred by the tenant defendant and the lower appellate Court held that the plaintiff is not competent to maintain the suit because he had no subsisting title to the disputed premises at the time of the institution of the suit. Having taken this view on the question of plaintiff's title, the lower appellate Court did not think it necessary to go into other questions raised in the suit, namely, whether the tenant was a statutory defaulter and whether the plaintiff reasonably required the premises for his own use and occupation. The result was that the suit was dismissed by the lower appellate Court. The plaintiff thereupon filed the present appeal in this Court challenging the legality and correctness of the decision of the lower appellate Court.

5. The only question which arises at the present stage is whether the lower appellate Court committed any error in law in holding that the plaintiff appellant had no subsisting title to the disputed premises at the time of the institution of the suit in the Court of the Munsif. The question of title involves the following admitted facts. The appellant had another pre-deccased brother of the name of Ranjit Mukherjee. Upon the death of Ranjit, his mother Haridasi Debi who is also the mother of the plaintiff became an heir of Ranjit. The appellant and his brother Ranjit were the owners of two house premises Nos. 14 and 14/1, Iswar Ganguli Street, Calcutta. These two premises became the subject matter of a suit for partition between the appellant and his mother Haridasi Debi in Partition Suit Ho. 11 of 1850. A joint petition of compromise was filed by the mother and the son in the partition suit on the 11th August, 1950 and an order was passed on the basis of the compromise partition on the same date. The order runs to the following effec :

'Both parties at first file hazira but subsequently they file a joint petition of compromise which he accepted. Let the terms of compromise be recorded so far as they relate to the subject-matter of the suit. Court-fee on plaint is sufficient. Ordered that the suit be decreed finally on compromise in terms of solenama which do form a part of the decree.'

6. Although an order was passed finally decreeing the suit in terms of the compromise petition on the 11th August, 1950, it is an admitted fact that no final decree has been engrossed on a requisite stamped paper at least till the time of the decision of the suit in the Courts below, because no stamped paper was filed by the parties in Court for the purpose of formally drawing up the decree. An order of the Court of the Subordinate Judge in the partition suit which is dated the 18th April, 1952 would show that Haridasi Debi who had filed a petition for passing the final decree did net press that petition which was therefore rejected (vide Ext. 11). Under the terms of the compromise referred to above the premises bearing No. 14, Iswar Ganguli Street have been allotted to the mother and the other premises bearing No. 14/1, have been allotted to the son, namely, the appellant of this appeal. It was argued before the lower appellate Court that because the house of which the disputed premises form a part was allotted to the mother under thecompromise dated the 11th August, 1950, the appellant lost his title to that house and he could no longer maintain the suit for recovery of arrears of rent against the respondent. This argument was accepted by the lower Appellate Court & relying on a decision reported in 'Raghubir Sahu v. Ajodhya Sahu', AIR 1945 Pat 482 (A), that Court held that the partition suit having been finally decreed on compromise and separate allotments having been made thereunder the plaintiff appellant lost his title to premises No. 14, Iswar Ganguli Street which was allotted to his mother. In my opinion, the lower appellate Court has misread the case cited above. It is true that according to that decision a compromise of the nature we are dealing with not only declares the rights of several parties interested in the property but also allots properties according to the respective shares of each party. In my opinion, after such a compromise the parties thereunder would be precluded from Questioning the allotments as amongst themselves, but no legal title would accrue in favour of any party to the allotments made unless and until the final decree is formally engrossed on requisite stamped paper. The following sentence occurring towards the end of the above report will bear out the correctness of this proposition.

'The only effect of engrossment of the decree on stamped paper would be that it will be rendered legally effective which it is not until so engrossed.'

In my judgment the legal title to premises No. 14, Iswar Ganguli Street has not yet accrued to the mother under the allotment made in the compromise decree because no final decree has yet been engrossed on necessary stamped paper.

7. The lower appellate Court also cited a case of this High Court in this connection which is reported in -- 'Jatindra Mohan Tagore v. Bijoy Chand Mahatap', ILR 32 Cal 483 (B). It has been held in that case that a decree for partition, to be operative, must be engrossed on stamped paper as required by the Stamp Act and until the Judge signs the decree so engrossed, it cannot be said that the suit terminated. In that case partition, was effected by a Commissioner appointed by the Court and an order was passed by the Court confirming the Commissioner's report, but no formal decree engrossed on stamped paper. Under these circumstances, the High Court held that the suit had not terminated and the order confirming the Commissioner's report must be taken to be an interlocutory order made in the course of the suit and prefatory to the order that might determine the final rights of the parties. Having regard to these two decisions. I am of opinion that so long as a formal partition decree is not engrossed on requisite stamped paper and the formal decree is not signed by the Judge, the mother will not acquire any legal title to the premises allotted to her, namely, premises No. 14, Iswar Ganguli Street. Of course, she may acquire a title by adverse possession if she gets possession of this house and continues in possession in her own right for a period of twelve years to the exclusion of her son. But that period has not yet expired. In these circumstances, the legal title to the disputed premises still remains with the plaintiff and the lower appellate Court committed an error in law in dismissing the suit on the ground that the plaintiff appellant has got no subsisting title to the disputed premises.

8. My decision on the question of title being in favour of the plaintiff appellant I have no other alternative but to remand the appealto the lower appellate Court for hearing on the other issues raised in that Court, namely, whether the defendant-respondent was a statutory defaulter and whether the plaintiff appellant reasonably requires the disputed premises for his own use and occupation.

9. In the result, this appeal is allowed and the judgment and decree passed by the lower appellate Court arc hereby set aside and the matter is remanded to that Court for hearing the appeal again in the light of the above observations and in accordance with law.

10. Costs of all the Courts including the High Court will abide the result of the suit.

11. Let the appeal be heard by the lower appellate Court as expeditiously as possible.

12. Let the records be sent down to thelower appellate Court at an early date.


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