Smt. Santi Banerjee and Others Vs Smt. Durgarani Chakraborty and Others

Tapan Kumar Dutt, J.@mdashThis Court has heard the learned Advocates for the respective parties.

2. The facts of the case, briefly, are as follows:

3. The Plaintiffs/Respondents filed a suit for partition, accounts and damages against the Defendants/Appellants and also against the Defendants/ proforma Respondents/Respondents. The suit property appears to be 53 decimals of land with pucca structures comprised in Dag No. 3336, Khatian No. 1093 in Mouja Belghoria, which is now comprised in holding Nos. 26, 27 and 28 B.M. Banerjee Road.

4. The Plaintiffs'' case was that the suit property originally belonged to one Surendra Nath Banerjee and his brother Nagendra Nath Banerjee and each of the brothers had half share in the suit property; Nagendra Nath Banerjee sold his undivided eight annas share in the suit property to his son-in-law, Gourhari Chakraborty, by a registered Kobala dated 2.9.1938; the said Gourhari sold half of his share in the suit property to one Sailabala Devi who was the youngest daughter of Nagendra Nath Banerjee and, thus, sister-in-law of the said Gourhari; the said Gourhari, thus, retained four annas share in the entire suit property and the Plaintiffs in the suit inherited such four annas share from the said Gourhari as heirs of Gourhari; Sailabala died leaving behind the Defendant Nos. 7 to 11 as her heirs and such Defendants inherited Sailabala''s four annas share in the entire suit property. The Defendant Nos. 1 to 6 are the heirs of Surendra Nath Banerjee and such Defendants have inherited Surendra''s eight annas share in the entire suit property the Plaintiffs'' contention was that the parties to the suit are in possession of the suit property having their respective undivided shares therein, but the Defendant Nos. 1 to 6 were not allowing the Plaintiffs to enjoy the property according to their respective shares and the said Defendants were appropriating the entire rent realized from the tenants in the suit plot and were taking steps to harass the Plaintiffs and to disposses the Plaintiffs from the suit property. According to the Plaintiffs, the Defendant No. 12 has no interest in the suit property but the Defendant Nos. 1 to 6 have created a sham document in an effort to show that the Defendant No. 12 has some interest in the suit property.

5. The Defendant Nos. 1 to 6 contested the said suit by filing a written statement. The defence case was, inter alia, that about 50 to 60 years ago there was a partition of the properties including the suit property between the said Surendra and Nagendra and since then the said two brothers continued to possess exclusively their respective properties allotted to them by such partition; the suit property was also partitioned along with the other properties and the aforesaid two brothers continued to possess separate portions of the suit property allotted to them respectively; the heirs of the said two brothers as well as the heirs of the transferee Sailabala have been all along possessing their respective separate portions of the suit property and as such there cannot be any further question of partition. According to the Defendants, the Defendant No. 12 is the grand-son of Kshetramani who was the daughter of the grand daughter of Jadunath, and Jadunath was the uncle of the said Surendra and Nagendra and the said Defendant No. 12 and his ancestors have been all along residing in the suit property. The Defendants also alleged that they have acquired title by adverse possession.

6. The said suit came up for hearing when evidence was adduced and the learned trial Court by its judgment and decree dated 31st January 1979 dismissed the said suit on contest with costs against the Defendant Nos. 1 to 6 and ex parte without costs against rest of the Defendants.

7. The learned trial Court found inter alia that there is no dispute as regards the Plaintiffs'' claim of having 1/4th share in the suit property and the main dispute is with regard to the question as to whether or not there was already a partition between the previous owners Surendra and Nagendra. The learned Trial Court found that it appears that the Plaintiffs'' case rests mainly on the recitals in the registered kobala marked Ex. 1 and the C.S. Khatian in the names of the two brothers Nagendra and Surendra. Ext. I is the kobala dated 2.9.1938 showing the transfer of Nagendra''s eight annas share in the suit property by sale to the Plaintiffs'' predecessor Gourhari Chakraborty. The learned trial Court found that the three sets of co-sharers are possessing exclusive portions of the suit plot and they have already made pucca buildings in their respective portions and the said three respective portions have been assigned three municipal holding numbers, namely, holding Nos. 26, 27 and 28 respectively. The municipal taxes are assessed separately and the parties are possessing their respective separate portions for a long time. The learned trial Court considered the evidence of one defence witness, Lalmohan Ghosh, and found that the said witnesses acquaintance with the parties and their predecessor in interest has not been challenged, and the learned trial Court did not find any reason to disbelieve the said witness when the said witness stated that Surendra and Nagendra were residing separately. The learned Trial Court found that the parties to the suit are possessing their respective portions in the suit property all along and there is no evidence besides Ext. 1 to show that Nagendra and Surendra have been joint in mess and lodging. The learned Trial Court found that since 1947/48, separate holding numbers have been allotted to the respective portions possessed by each set of persons-contesting Defendants residing in holding No. 26, the Plaintiffs are residing in holding No. 27 and the Defendant Nos. 7 to 11 through their tenants are possessing holding No. 28. The learned trial Court disbelieved the Plaintiffs'' allegation that the separate holding numbers and the mutation of names of the parties have been done by the Defendant No. 1''s manipulation who was the Chairman of the Municipality concerned at the relevant point of time. The learned Trial Court found from evidence that the Defendant No. 1 was the Commissioner in the local municipality since 1962 and he was the Chairman for three/four years from 1964 where as the mutation in the municipal records took place long before such period. The learned trial Court also found that there was nothing to show that the Plaintiffs ever raised any objection with regard to the alleged manipulation by the Defendant No. 1. The learned trial Court found that the contesting Defendants have made considerable improvement of their structures and the Plaintiffs admitted that the costs of white wash of their respective buildings are borne by the respective parties.

8. The learned trial Court also found that the tenants in the holdings possessed by the contesting Defendants and also Defendant Nos. 7 to 11 were inducted without any reference to the Plaintiffs. The learned trial Court also considered the defence case that previously there were tenants in the Plaintiffs'' portion and the Plaintiffs only received rent from such tenants. The learned trial Court took into consideration the evidence of one Rabin Sarnakar (DW 3) who was one of the tenants under the Plaintiff previously and found that there was no reason to disbelieve the said witness. The learned trial Court came to the conclusion that previously the suit property was partitioned in between the predecessors of the parties to the suit and the Ext. 1 which is not strictly between the parties cannot affect such'' conclusion. The learned trial Court also recorded that the contesting Defendants have proved the deed of partition of the contesting Defendants and the said document bears the signature of Smt. Nalini Devi the mother of the Plaintiff No. 1. The learned Trial Court found that the Plaintiffs are not entitled to a decree for partition as they have failed to establish their allegation that the suit property is a joint property of the parties. The learned trial Court, thus, dismissed the suit.

9. The Plaintiffs filed a title appeal being title appeal No. 323 of 1979 and by judgment and decree 1st July, 1982 the learned Third Court of the A.D.J. at Alipore allowed the said appeal on contest with costs against the contesting Defendant Nos. 1 to 6 and without costs against the rest. The learned Lower Appellate Court set aside the judgment and decree passed by the learned trial Court and decreed the said suit in preliminary form by declaring 1/4 share of the Plaintiffs in the suit property and the Defendants were directed to partition the suit property in accordance with the Plaintiffs'' share and in default of compliance of such order within a stipulated period of time the Plaintiffs would be entitled to get the suit property partitioned by metes and bounds through a Commissioner.

10. The learned Lower Appellate Court considered the decision reported at AIR 1972 Cal 503 (Madan Mohan Ghosh and Ors. v. Sishu Bala Atta and Ors.) and found that a holding may be constituted by undivided shares of a plot and all the records of right Ext. C9 to C 11 show recording of undivided shares (in the plot) of the parties and it reflects that although the holdings were separated the parties continued as co-sharers in respect of the plot and this fact demolishes the defence case. The learned Lower Appellate Court relied upon Ext. 1 and found that in the year 1938 Nagendra treated the suit plot as undivided. The learned Lower Appellate Court while considering the evidence of D.W 1 laid emphasis upon the said witness''s evidence that Nagendra sold his share in the plot concerned to his son-in-law. The said learned Court held that the use of the words "his share" brings one to the conclusion the said witness admitted the continuity of the joint status of the parties in the suit property. The learned Lower Appellate Court considered the evidence of D.W 4 (Lal Mohan Babu) and noted that he could not say exactly if the properties have been partitioned but he only saw that the premises of the parties are separate and the learned Lower Appellate Court observed that separate demarcated possession does not ipso facto lead to the conclusion that the parties have partitioned their properties. According to the learned Lower Appellate Court, the learned trial Court was erroneously swayed by the fact that three sets of persons have been enjoying three separate municipal holdings. The learned Lower Appellate Court found that Ext. A to A4 (assessment registers) cannot reflect that partition by metes and bounds were effected. The learned Lower Appellate Court considered a decision reported at AIR 1980 Supreme Court 1173 (Kalyani (dead) by L.Rs. v. Narayanan and Ors.) and noted that to constitute a partition all that is necessary is a definite and unequivocal intention by a member of the joint family to sever the joint status and that such intention to separate must be to the knowledge of the persons to be affected by such declaration. The learned Lower Appellate Court observed that there is nothing to indicate such unequivocal intention by any member of the joint family to sever the joint status of the parties. The learned Lower Appellate Court found that the joint status of the parties has been continuing and the allegation of partition between Surendra and Nagendra has not been proved by any cogent evidence on record.

11. The Defendant Nos. 1 to 6/Appellants have preferred the instant second appeal challenging the impugned judgment and decree passed by the learned Lower Appellate Court.

12. After having considered the submissions made by the learned Advocates for the respective parties and after having considered the materials on record, this Court is of the view that the main question to be decided in the instant appeal is as to whether or not there was a previous partition between the predecessors of the present parties since the fate of the suit filed by the Plaintiffs/ Respondents would very much depend upon the answer to such question. The learned Trial Court was of the view that there was a previous partition but the learned Lower Appellate Court held otherwise.

13. The learned Advocate for the Defendants/Appellants submitted that each set of persons possessing their respective holdings, that is, the three holdings as mentioned above, had applied for sanction of the building plan in respect of their own respective premises. He referred to some provisions of the Bengal Municipal Act 1932 in support of his contention that the respective owners of the three separate holdings were treated to be the respective owners of the said three holdings by the municipal authorities concerned in accordance with the relevant provisions of the law. He referred to the definition of the words "holding" "occupier" and "owner" as appearing in the said Act of 1932. He referred to the provisions of Section 123 regarding the power to impose taxes. He referred to Section 130 of the said Act of 1932 regarding the assessment in case of land or building, sub-divided into separate shares. He also referred to provisions of Section 136 dealing with the preparation of the assessment list and also to Section 147 relating to publication of notice of assessments. He also referred to Section 317 of the said Act of 1932 which provides for application for obtaining sanction for erecting a building. He also referred to Form A in Schedule VI of the said Act of 1932 which indicates that the owner has to apply for obtaining such sanction. He referred to the said provisions of law to show that the municipal authorities concerned were duly satisfied with regard to the respective ownership of the persons possessing the respective three holdings, as aforesaid.

14. The learned Advocate for the Defendants/Appellants submitted that the learned Lower Appellate Court failed to consider the evidence of DW 2 who was a tenant under the Plaintiffs at 27 Bhuban Mohan Banerjee Road where the said witness stated that the owner of the holding No. 26 is Baidyanath Babu, that is, the Defendant No. 1. According to the said learned Advocate, the said DW 2 admitted that Baidyanath Banerjee is the owner of holding No. 26. The said learned advocate further submitted that the learned Lower Appellate Court failed to consider the evidence of DW 3 who stated that he was a tenant at holding No. 27 and Nalini Devi was the land lady and he got receipts from Sibnath Chakraborty, Biswanath Chakraborty and Nalini Devi. Thus, according to the said witness the Plaintiffs were the landlords in respect of the said holding No. 27. It was further submitted that Ext.F series were the receipts granted by Plaintiffs to their tenants in respect of the said holding No. 27. The learned advocate for the Appellant submitted that the above evidence on record would show that the Plaintiffs have been occupying their separate holding and have Also been receiving rents from their tenants.

15. The learned advocate for the Appellants further submitted that even though the lower Appellate Court came to a finding that the Defendant No. 1 was the Chairman of Kamarhati Municipality during the period 1973-74 there is no evidence on record to support such finding. He submitted that the said Defendant No. 1 was the Chairman of the said municipality during the period 1964-68.

16. The said learned Advocate referred to Section 114 of the Indian Evidence Act, 1872 while submitting that the entries in the assessment register of the said municipality would give rise to a presumption that proper procedure was followed while making such entries in the said register and such entries indicate that the owners of the three holdings are separate and, therefore, partition had taken place long time back. He also submitted that most of the Plaintiffs have sold out their respective shares to the Respondent Nos. 9(a) and 9(b). The learned Advocate for the Appellants submitted that the learned lower Appellate Court did not consider the rent receipts on record and that the Appellants are not only relying on entries in record of right but other evidence also. According to the said learned Advocate, the Appellants have already led evidence on the fact of partition and there is no need for any further inquiry. He also submitted that in the present case it was not just severance of status of the parties but the partition has been effected and there is no joint family property in existence. According to him the partition effected long back has already been acted upon.

17. The said learned advocate cited a decision reported at AIR 1982 SC 127 (Idandas v. Anant Ramchandra Phadke (dead) by L.Rs) where the Hon''ble Court was pleased to observe that the entry in the counterfoils in the rent receipt made by the landlord was an admission in the landlords own favour and was not admissible against the tenants. The said learned Advocate submitted that the said principle can be applied in case of the recitals of sale deed (Ext. 1) which was relied upon by the Plaintiffs as the said recitals cannot have any binding effect on the persons who were not the parties to the said deed.

18. The said learned Advocate cited another decision reported at S. Shanmugam Pillai and Others Vs. K. Shanmugam Pillai and Others, where the Hon''ble Court was pleased to observe that the members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into a family arrangement and if such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case the Court would more readily give assent to such an agreement than to avoid it. In the said reported case the Hon''ble Court was pleased to consider the judgment reported at Sahu Madho Das and Others Vs. Mukand Ram and Another, while noting that Courts lean strongly in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all and a family arrangement can as a matter of law be inferred from a long course of dealings between the parties. Citing the said reported case the said learned Advocate submitted that the partition which took place between the predecessors of the parties effecting separate and distinct possession of the respective properties was itself a family arrangement. The said learned Advocate cited another decision reported at Kalyani (Dead) by Lrs. Vs. Narayanan and Others, nd referred to Paragraph 10 of the said reports where the Hon''ble Court was pleased to observe that Partition in one sense is a severance of joint status and coparcener of a coparcenery is entitled to claim it as a matter of his individual volition. In the narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenery with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (See Appovier v. Rama Subba Aiyan (1986) 11 Moo Ind App 76 (PC) quoted with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh Vs. Appasaheb Tuljaramarao Nimbalkar and Others, . A disruption of joint family status by a definite and unequivocal intention to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter. This may at any time, be claimed by virtue of the separate right (See Girja Bai v. Sadashiv) 43 Ind APP 151 : AIR 1916 PC 104. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense". According to the learned advocate for the Appellants the facts of the present case do establish that partition was effected long time back.

19. The learned Advocate for the Appellants submitted that the decision reported at Durgabala Biswas Vs. Nityananda Roy, cannot be of any assistance to the Plaintiffs/Respondents in the facts and circumstances of the present case since the entries in the assessment register indicates the possession of the parties in their respective premises and such entries are not recorded on mere statement of the parties, but physical verifications made by the authorities concerned in exercise of their statutory duties in accordance with the said Act of 1932 and rules made thereunder.

20. Another decision cited by the said learned Advocate is the one reported at Madan Mohan Ghosh and Others Vs. Sishu Bala Atta and Others, . He submitted that such reported case cannot be of any assistance to the Plaintiffs/Respondents since the said reported case was with regard to the scope of the right of pre emption u/s 26-F of the Bengal Tenancy Act and such reported case cannot come in aid of a presumption that the parties have continued as co-sharers in respect of the suit property and no partition was effected.

21. The said learned Advocate cited the decision reported at Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., in support of his contention that if the findings of facts by the learned Courts below are found to be perverse then it is permissible for this Court to interfere with such findings in a second appeal.

22. The said learned Advocate cited another decision reported at Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. and Others, in support of his contention that where a decision of the first Appellate Court was reached after placing the onus wrongly or based on no evidence, or where there has been substantial error or defect in the procedure, producing error or defect in the decision of the case on the merits then in that event such decision is not conclusive and a second appeal would lie to the High Court against such decision. The next decisions cited by the learned Advocate for the Appellants are the ones reported in Radha Nath Seal (dead) by his legal representatives Vs. Haripada Jana and Others, and Damadilal and Others Vs. Parashram and Others, ) in support of his contention that if the learned First Appellate Court fails to consider material evidence then the High Court can interfere in a second appeal. The next decision cited by the said learned advocate is the one reported at AIR 1988 Supreme Court 1858 (Dilbagrai Punjabi v. Sharad Chandra) in support of his contention that if the learned First Appellate Court refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law this Court in second appeal can set aside such finding. The said learned Advocate cited another decision reported at M/s. Dutta Cycle Stores and others Vs. Smt. Gita Devi Sultania and others, but it appears that the said reported case was with regard to the scope of Article 136 of the Constitution of India.

23. The said learned Advocate cited another decision reported at Jagdish Singh Vs. Natthu Singh, in support of his contention that if the findings of the learned Courts below are vitiated by the non-consideration of relevant evidence or by a wrong approach, the High Court is not precluded from recording proper findings in a second appeal. The said learned Advocate cited another decision reported at D.S. Thimmappa Vs. Siddaramakka, in support of his contention that where the First Appellate Court fails to draw the proper inference from proved facts and to apply law in proper perspective, the High Court in second appeal will be justified in drawing the proper inference from proved facts. The said learned Advocate cited another decision reported at AIR 1998 SC 427 (Smt Mehrunnisa and Ors. v. Smt. Visham Kumari and Anr.) in support of his contention that where the learned First Appellate Court reverses the finding of the learned trial Court by failing to read the entire evidence and to take into consideration the documents placed before the learned trial Court, the High Court would be justified in interfering with such finding of the learned First Appellate Court.

24. The learned Advocate appearing on behalf of the Respondent Nos. 16 to 19 adopted the argument of the learned Advocate of the Appellants.

25. The learned Advocate appearing on behalf of the Respondent Nos. 1(a) to 1(g) submitted that just because some of the Plaintiffs have sold their shares to the Respondent Nos. 9(a) and 9(b) it does not mean that there has been a partition, and the Plaintiffs did not get any notice from the municipal authorities with regard to the separate holding numbers. According to the said learned Advocate there was no partition either between the parties or between the predecessors-in-interest of the parties. He has submitted by referring to the evidence of DW 1 that there was no deed of partition between Nagendra Nath and Surendra Nath and in absence of such deed there could not have been any partition. He has further submitted that Ext. 1 suggests that Nagendra sold his undivided half share to Gourhari. He has further submitted that creation of different holding numbers does not mean that there was partition and entries in the records-of-right do not establish the allegation that there has been a partition. The learned Advocate for the Respondent Nos. 1(a) to 1(g) further submitted that the deeds by which the Respondent Nos. 9(a) and 9(b) claim to have purchased some of the shares of some of the Defendants and of some of the Plaintiffs have not been adduced in evidence as Respondent Nos. 9(a) and 9(b) were added as parties in the second appeal in this Court.

26. The said learned Advocate has referred to the decision reported at 2009 (3) ICC Kar 697 (Boramma v. Srinivasa and Ors.) in support of his contention that right of ownership cannot be declared in favour of party on the basis of entries made in the revenue records.

27. He cited another decision reported at 2009 (1) CLJ (S.C) 255 (Kartick Chandra Mandal v. Netai Mondal (Dead) by L.Rs. and Ors.) in support of his contention that there could not have been any partition without any deed of partition coming into existence. He submitted that unless there is a registered instrument in support of such partition one cannot come to the conclusion that there was any partition. It will appear from the said reports that the Hon''ble Supreme Court has been pleased to observe that after the introduction of Section 14 of the West Bengal Land Reforms Act the partition of holding can be effective only by registered deed or by decree or order of a court. It was further noted in the said reports that the said section came into force in West Bengal with effect from 7.6.1965 except in the areas transferred from Bihar to West Bengal. It will further appear from the said reports that the case in the said reports was remitted to the learned Trial Court to formulate the issue with regard to the date of the alleged partition between the Plaintiff and the original Defendant No. 3 in the said reported case.

28. The said learned Advocate cited another decision reported at M.L. Subbaraya Setty (Dead) by Lrs. and Others Vs. M.L. Nagappa Setty (Dead) by Lrs. and Others, and referred to Paragraph 31 of the said reports where it has been held that on mere severance of status of joint family, the character of any joint family property does not change with such severance and such character of joint family property is retained till partition.

29. The next decision cited by the said learned Advocate is the one reported at 2007 (2) CLJ (SC) 60 (M. Venkatramana Hebbar (D) by L.Rs. v. M. Rajagopal Hebbar and Ors.) in support of his contention that a co-owner can cause a severance in the status of the joint family by expressing his intention to separate but despite such separation in the joint status parties may continue to possesses properties jointly unless a partition of the joint family property takes place by metes and bounds. Another decision cited by the said learned Advocate is the one reported at Chinthamani Ammal Vs. Nandagopal Gounder and Another, Reference was made to Paragraph 17 of the said reports wherein it has been observed by the Hon''ble Court that in law there exists a presumption in regard to the continuance of a joint family and the party which raises a plea of partition has to prove the same. The Hon''ble Court was further pleased to observed that even separate possession of a portion of the property by the co-sharers itself would not lead to a presumption of partition and several other factors are required to be considered there for.

30. The other decision cited by the said learned Advocate is the one reported at Boto Krishna Ghose Vs. Akhoy Kumar Ghose and Others, in support of his contention that even if a member of a joint family transfers his share in a dwelling house to a stranger such stranger-transferee does not become entitled to joint possession or other common or part enjoyment of the house, although he would have the right to enforce a partition of his share, the possession and enjoyment of the dwelling house would be confined to the members of the joint family and the stranger-transferee would be debarred by law from exercising any right to joint possession and such dwelling house can still be looked upon as a dwelling house belonging to an undivided family. According to the said learned Advocate in such a situation the stranger-transferee can only exercise his right to possession.

31. The other decision cited by the said learned Advocate is the one reported at Haradhone Haldar Vs. Usha Charan Karmakar and Others, and reference was made to Paragraph 8 and 9 of the said reports. In Paragraph 8 of the said reports it has been observed by the Hon''ble Court that "joint possession is no bar to a claim for partition. On the other hand, it is really the foundation for such a claim and the aim of partition is to break up this joint possession and convert it into separate possession. The utmost that can be claimed is that, if this joint possession of the stranger Defendant-Appellant has assumed such a character that he may be regarded as a member of the family, referred to in Section 4, Partition Act, he will place himself outside the mischief of that section and will not be bound to submit to pre-emption thereunder (Vide - Bhuban Mohan Guha and Another Vs. Brojendra Chandra Ghose and Others, . In Paragraph 9 of the said reports the Hon''ble Court while dealing with Section 4 of the Partition Act was pleased to observe that the said section has to be liberally construed, though in so doing the Court is not entitled to disregard or sacrifice its terms and it shall have as full a scope as its language permits and, within limits set by the statutory language, the rule of liberal construction ought to prevail in the matter of construction of the section.

32. The Respondent Nos. 9(a) and 9(b) have been represented by their respective learned Advocates. The said Respondent Nos. 9(a) and 9(b) claim to have purchased the respective shares of some of the Plaintiffs and the Defendants in the suit. It has been stated by the respective learned Advocates appearing on behalf of the said Respondent Nos. 9(a) and 9(b) that the Respondent Nos. 1(a) to (g) now have a very small share in the suit property and the total area that falls within their share would be about 642 sq. ft. The respective learned Advocates appearing on behalf of the said Respondent Nos. 9(a) and 9(b) before making their submissions on merits of the case, upon instructions from their respective clients, made an offer to the Respondent Nos. 1(a) to 1(g) through their learned Advocate. The offer was as follows:

1) The Respondent Nos. 1(a) to 1(g) may be permitted to choose any part of the suit property according to their share and enjoy the same by proper demarcation of it. Or

2) The Respondent Nos. 9(a) and (b) were agreeable to pay the present market value of the share of the Respondent Nos. 1(a) to 1(g) in the suit property to the latter and thus purchase the share of the Respondent Nos. 1(a) to 1(g).

Or

3) The Respondent Nos. 1(a) to 1(g) may buy up the property (in the suit property) purchased by the Respondent Nos. 9(a) to (b) at the present market value in their own names, that is, in the names of the Respondent Nos. 1(a) to 1(g).

33. The learned Advocate for the Respondent Nos. 1(a) to 1(g) upon instructions from his clients, objected to the aforesaid proposals and refused to accept any of the aforesaid proposals. In such circumstances, the respective learned Advocates for the said Respondent Nos. 9(a) and 9(b) withdrew their offer on behalf of the said Respondents and thereafter made their submissions on the merits of the case.

34. The learned senior Advocate appearing on behalf of the Respondent No. 9(a) laid emphasis on the findings of the learned trial Court that the parties are possessing their respective premises exclusively and the three premises have been assigned three municipal holding numbers and the municipal taxes are assessed separately in respect of the three municipal holdings. He also laid emphasis on the finding of the learned trial Court to the effect that possession of the separate portions of the land by different sets of persons for a long time has been established and since 1947/48 the separate holding numbers have been allotted to the possession of each set of persons. The learned trial Court has found that the contesting Defendants are residing in the holding number 26, Plaintiffs are residing in holding number 27 and holding number 28 is possessed by the Defendant Nos. 7 to 11 through their tenants. He also referred to the finding of the learned trial Court that there are evidences to show that the contesting Defendants have made considerable improvements of their structures and the Plaintiffs have admitted that the cost of white washing of the respective buildings are borne by the respective parties. He has also referred to the finding of the learned trial Court that admittedly the tenants in the holdings possessed by the two sets of Defendants were inducted without any reference to the Plaintiffs. He also referred to the finding of the learned trial Court that the three sets of persons inducted tenants in the respective portions possessed by them respectively. He also referred to the finding of the learned Trial Court that the evidence on record will suggest that there has been a previous partition of the suit plot as contended by the contesting Defendants. With regard to the Ext. 1 the said learned Advocate submitted that the co-sharers who are not parties to the said deed are not bound by the recitals in the said deed. He referred to the decision reported at Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., in support of his contention that improper functioning of the First Appellate Court may give rise to a substantial question of law and the judgment of a First Appellate Court must display conscious application of mind and recording of the findings supported by reasons on all issues and contentions particularly in a case where the learned First Appellate Court reverses the finding of the learned trial Court.

35. The learned Advocate appearing on behalf of the Respondent No. 9 (b) fully adopted the arguments made by the learned Senior Advocate for the Respondent No. 9 (a) and further submitted that in the facts and circumstances of the present case, it would be fit and proper for this Court to direct the Respondent Nos. 1(a) to (g) to sell of their share in the suit property to the Respondent No. 9 (a) and (b) at the present market value as any reasonable physical demarcation of the share of the Respondent Nos. 1(a) to (g) in the suit property would not be possible.

36. It appears from the records that the learned Lower Appellate Court did not properly appreciate the evidence of DW2 and DW3 in its proper perspective as submitted by the learned Advocate for the Defendants/ Appellants. The said witnesses were once upon a time the tenants of the Plaintiffs and according to such witnesses the Plaintiffs had collected rent from them when they were tenants in holding No. 27. Ext.F series bear testimony to the grant of receipts by the Plaintiffs to their tenants in respect of the holding No. 27. The entries in the Municipal Register do give rise to a presumption that the three sets of persons have been possessing the three holdings separately for a very long time and there would also be a presumption that the municipal authorities have acted in its official capacity and followed the procedures which were required by the statute to be followed before making the relevant entries in its register. Section 114(e) of the Indian Evidence Act, 1872 approves of such presumption of an official act being regularly performed. The learned Lower Appellate Court laid much emphasis on Ext. 1 but failed to appreciate that the recitals in the said Ext.1 cannot bind the persons who were not parties to the said deed. S. Shanmugam Pillai''s case (supra) lays down that if an agreement of family arrangement is bona fide and the terms thereto are fair the Court would more readily give assent to such an agreement than to avoid it. The said reported case took into consideration another reported case, as already mentioned above, which laid down that the Courts lean strongly in favour of family arrangements that bring about harmony in a family and do justice to its various members and family arrangements can be inferred from long course of dealings between the parties. In Kalayani''s case (supra) it was laid down that all that is necessary to constitute partition is a definite and unequivocal indication of a joint-family-member''s intention to separate himself from the family and enjoy his share in severalty. The said reported case has already been discussed above. In the said case it was also held that a disruption of joint family status by a definite and unequivocal intention to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. In the present case, the materials on record indicate and prove that the parties have effected disruption of their joint family status long long back and they have also followed it by partition of the suit property. For decades the respective sets of persons have been enjoying their respective holdings by, inter alia, in causing improvements on such holdings, inducting the tenants in such holdings and realizing rents from such tenants to the exclusion of the others. This Court is of the view that the learned Advocate for the Appellants was right in his submission that the learned First Appellate Court failed to draw proper inference from proven facts and to apply law in its proper perspective. The Jagdish Singh''s case (supra) supports the contention of the said learned Advocate.

37. The contention of the learned Advocate for the Respondent Nos. 1(a) to (g) that there being no registered deed of partition in existence there could not have been partition in between the parties and/or their predecessors is not acceptable to this Court. In support of such contention reference was made to Section 14 of the West Bengal Land Reforms Act but the time when the partition between the predecessors to the present parties took place, Section 14 of the said Act was not in operation. In Kartick Chandra Mandal''s case (supra) the Hon''ble Supreme Court was pleased to observe that the said section came into force in West Bengal with effect from 7.6.1965 except in the areas transferred from Bihar to West Bengal and it will further appear from the said reports that the matter was remitted to the learned Trial Court to formulate the issue with regard to the date of the alleged partition between the Plaintiff and the original Defendant No. 3 in the said reported case. The M. Venkatramana Hebbar''s case (supra) cannot be of any assistance to the Respondent Nos. 1(a) to (g) in the facts and circumstances of the instant case because this Court finds from the materials on record in the instant case that there was not only a severance in the status of the joint family of the parties but also the suit property has been partitioned by metes and bounds. The three holdings with different holding numbers, enjoyed by three sets of persons in the manner aforesaid, have been in existence for decades. Reference to the relevant provisions of the Municipal Laws concerned, as indicated above, by the learned Advocate for the Appellants is of relevance. In the facts of the present case, the Appellants have successfully rebutted the presumption of continuance of the joint family and they have proved that the suit property was partitioned long time back by metes and bounds. Each of the three holdings has its own area and contours. In the present case, it appears that it is not just a case of mere separate possession of a portion of the property by the respective co-sharers but the suit property has been completely partitioned by metes and bounds and separate holding numbers have been assigned to the three holdings. It is true that mere selling away of a co-sharer''s share in the joint property does not mean that there was a partition amongst the co-sharers, as rightly submitted by the learned Advocate for the Respondent Nos. 1(a) to (g), but in the present case materials on record clearly prove that there was a partition amongst the predecessors of the parties long time back. Citing of the reported cases by the learned Advocate for the Respondent Nos. 1(a) to (g) with regard to the stranger purchaser''s right in respect of a joint family property are not relevant in the present case in view of the fact that this Court is of the view that partition has been effected long time back as held by the learned trial Court. The learned Advocates for the Respondent Nos. 9(a) and (b) have relied upon certain findings of the learned trial Court, as already indicated above, which cannot be disturbed in the facts and circumstances of the present case, particularly the findings in support of the trial Court''s conclusion that there was a previous partition long time back.

38. In view of the discussions made above this Court finds that the impugned judgment and decree passed by the learned Lower Appellate Court should be set aside and the judgment and decree passed by the learned trial Court should be restored.

39. The appeal-is allowed. The judgment and decree dated 1st July, 1982 passed by the learned Additional District Judge, Third Court, at Alipore in title appeal No. 323 of 1979 are set aside and the judgment and decree dated 31st January, 1979 passed by the learned Subordinate Judge, 5th Court, at Alipore in title suit No. 53 of 1975 are restored.

40. There will, however, be no order as to costs.