Judgment:
B. Bhattacharya, J.
1. This second appeal is at the instance of a plaintiff in a suit for partition and is directed against the judgment and decree dated January 3, 1984 passed by the learned Additional District Judge, 8th Court, Alipore in Title Appeal No. 654 of 1982 thereby affirming those dated May 29, 1982 passed by the learned Subordinate Judge, 4th Court, Alipore in Title Suit No. 32 of 1980 renumbered as Title Suit. No. 23 of 1982.
2. The appellant herein filed the aforesaid suit for partition against respondent No. 1, his younger brother after making State of West Bengal as a pro-forma defendant. The subject matter of the suit was piece and parcel of land measuring 2 1/2 kottahs together with a two storied pucca building and other kuttcha and pucca structures standing thereon being Plot No. E/251(Local No. 1/29), Vivek Nagar Colony, Calcutta. The case made out by the appellant in the plaint was that the plaintiff and defendant No. 1 were refugees from East Pakistan and the land was forcibly occupied by them and the Refugee Relief and Rehabilitation Department, West Bengal granted necessary licence in favour of plaintiff and defendant No. 1 for the purpose of residence. According to the appellant, initially there was kutcha houses constructed by the parties but gradually a two storied pucca building was constructed over the land at the cost of both plaintiff and defendant No. 1. After making such construction, the parties were living amicably, but of late, the defendant No. 1 having started asserting absolute title over the structure and having threatened dispossession of the plaintiff, the suit was filed for partition after making State of West Bengal, the licensor of the land as a party.
3. The aforesaid suit was contested by the respondent No. 1 by filing written statement thereby denying the allegations made in the plaint. In the written statement, the defendant No. 1 did not dispute grant of Joint licence by the State of West Bengal in favour of both the brothers but his defence was that he constructed the pucca building at his own cost after taking loan from his office and he restricted his construction within half of the 2 1/2 kottahs of land keeping the other half vacant so that the defendant may also construct on the remaining portion of the land. It was the definite case of the defendant that the plaintiff was a licensee under him in respect of the structure and the plaintiff had neither financial capability nor did he contribute any amount towards the construction of the building which was made with the consent of the plaintiff.
4. At the time of hearing of the aforesaid suit, plaintiff along gave evidence in support of his case while three witnesses including the defendant No. 1 deposed in opposing the prayer of the plaintiff.
5. The learned trial Judge by the judgment and decree dated May 29. 1982 decreed the suit in preliminary form thereby declaring half share of the plaintiff in the disputed property Including structure and the parties were directed to make amicable partition within two months. It was further observed that the suit plot and structure being squatters' colony, the partition will not bind the State of West Bengal.
6. Being dissatisfied with the aforesaid judgment and decree passed by the learned trial Judge, the defendant No. 1 preferred an appeal being Title Appeal No. 654 of 1982 and by the judgment and decree Impugned in this appeal, the learned first appellate Court below set aside those passed by the learned trial Judge and dismissed the suit for partition.
7. Being dissatisfied, the plaintiff has preferred the instant second appeal.
8. Initially the instant second appeal was allowed by a Division Bench of this Court thereby setting aside the judgment and decree passed by the learned first appellate Court below and affirming those passed by the learned trial Judge.
9. Being dissatisfied, the plaintiff preferred a special leave application before the Apex Court and the Apex Court set aside the judgment and decree passed by the Division Bench of this Court and remanded the matter back to this Court for hearing afresh. According to the Apex Court, the Division Bench of this Court while allowing the appeal reappreciated evidence which was not permissible under section 100 of the Code of Civil Procedure and thus remanded the matter back to this Court for deciding afresh within the limitation imposed under section 100 of the Code of Civil Procedure. It was further observed that It would be open to the appellant herein to urge before this Court all points which are available under law.
10. Pursuant to such direction this appeal has been taken up for hearing.
11. In view of the fact that at the time of admission of the second appeal, the Division Bench admitting such appeal did not formulate any substantial question of law as required under section 100 of the Code, after hearingMr. Roychowdhury in support of this appeal and Mr. Roy appearing on behalf of the respondent No. 1, I have formulated the following substantial questions of law for determination of this appeal :--
(a) Whether in view of decision of the Apex Court in Civil Appeal No. 2346 of 1991 the present appellant is entitled to argue any other point than the two questions mentioned by the Apex Court in paragraph 2 of the Judgment?
(b) Whether the learned first appellate Court below committed error of law in not applying the proper tests which are required to be applied in deciding a question whether the disputed structure is the joint property of the parties?
(c) Whether in the absence of specific finding that the plaintiff has been ousted, the defendant can claim that the building constructed on the joint property is owned by him absolutely?
(d) Assuming for the sake of argument, even if the plaintiff falls to prove that he contributed any amount for the construction of the structure on the joint property, whether the plaintiff can claim half share in the building simply on the ground that the defendant knowing fully well that the properly belonged to both the parties made development without any objection from the plaintiff?
12. Mr. Roy, the learned counsel appearing on behalf of the respondent No. 1 at the very outset drew attention of this Court to the decision of the Supreme Court wherein in second paragraph the Supreme Court observed that the decision of the present case depends on the issue as to when the premises in question was constructed and at whose costs. Relying upon the said observation Mr. Roy contends that apart from the two questions mentioned above, this Court is not competent to decide other questions Involved in this appeal.
13. Mr. Roychowdhury on the other hand however has drawn the attention of this Court to the last paragraph of the judgment where the Apex Court specifically held that it would be open to the respondent before that Court to urge all the points which are available to him under law.
14. After reading the Judgment as a whole, I find that the Apex Court directed rehearing of the appeal on all possible questions which arc permissible within the frame work of section 100 of the Code of Civil Procedure. Therefore. I do not find any substance in the contention of Mr. Roy that this Court will adjudicate only the question when the construction took place and who paid costs.
15. After hearing Mr. Roychowdhury in support of this appeal and Mr. Roy on behalf of the respondent No. 1. I however find no illegality or error of any law so as to reverse the finding of the learned first appellate Courtbelow.
16. It appears from the evidence given by the plaintiff himself that he admitted in his cross-examination that he did not contribute any amount for the construction of the building. It further appears that in his office he gave declaration that he is a licensee under his brother and the house was not his own house. Further in the Municipal record the building has beenshown to be solely owned by the defendant No. 1. Mr. Roychowdhury wanted to argue before this Court that the second electric meter in the name of his client shows that he exercised right of ownership over the property. Such position has been explained by the defendant No. 1 himself in his evidence stating that as electric supply authority does not permit two meters in a house in the name of same person, he permitted his elder brother to take the second meter so that the same can be utilised for the tenants of the building. Similarly, realisation of rent from tenant does not prove that he contributed any amount towards construction when he himself has admitted that at the time of retirement in 1980 his salary was Rs. 300/- a month and that his younger brother used to help him. Moreover, as mentioned earlier, he has categorically stated that no amount was contributed by him towards construction. After such unequivocal admission in the cross-examination there is no scope of going into other question whether he exercised his right of ownership. It is not the case of the plaintiff that although he was a licensee and has contributed nothing, he by force occupies the property and thus became joint owner. Therefore, I do not find any reason to interfere with the finding of fact arrived at by the learned first appellate Court below that the entire construction on the land was made by the defendant No. 1 alone.
17. The next question that arises for determination is whether the plaintiff acquires title to the property on the principle that if a co-sharer has made construction over Joint property knowing fully well that he is not the absolute owner, such construction devolves upon all co-sharers. According to Mr. Roychowdhury in such a case, even if the Defendant No. 1 spent the entire amount for construction, such construction should be for the benefit of all the co-sharers and thus the plaintiff acquired half share in the building constructed by the defendant No. 1.
18. In support of such contention Mr. Roychowdhury relied upon the following decisions :--
(1) Mallesappa B. Desai and Anr. v. Desai Mallappa and Another reported in : [1961]3SCR779 ,
(2) Sm. Pushpa Debi v. Commissioner of Income Tax reported in : [1977]109ITR730(SC)
(3) Jatindra Mohan Roy v. Ramesh Chandra Roy reported in 40 Indian Cases 504 (Cal),
(4) Solaiman Musaji Asmal v. Jattndra Nath Mondal; ILR 57 Cal 538,
(5) Ramkrishna Mardi v. Vishnuboorthi Mard; AIR 1957.
19. The law on this question is not in dispute. A co-owner without taking consent of other co-owner cannot make any construction over any portion of the property in excess of his share or with the object to embarass any other co-owner or to hinder any effective partition or to deminish the value of the joint property, even if such construction is within his share. If a co-owner makes any construction with the above motive, the other co-sharer is entitled to get an order of injunction restraining such a wrong doer from doing such wrongful act. But if a co-owner bona fide makes construction over a portion of the property which is within his share and the other co-sharer expressly or impliedly consents to such construction, at the time of partition of the property, that self-acquired a construction will be allotted to that co-sharer who has made such construction. In the instant case, the defendant No. 1 did not dispute that the land was Jointly allotted to the two brothers by the State of West Bengal but it is his specific case that he made construction within half of the total area of land keeping the other half vacant so that the plaintiff in future can make construction. He has further asserted that he had no objection if the plaintiff constructs over remaining half portion of the vacant land.
20. There is no dispute that plaintiff did not raise any objection at the time of making construction and plaintiff resided in the property and also realised rent from one of the tenants. He has also admitted by giving declaration in his office that he has no share over the building. Therefore, the defendant No. 1 did not make such construction against the wish of the other cosharer and thus the said construction was made with the express or atleast implied consent of plaintiff. Having allowed his younger brother to make construction within half portion of the land, plaintiff now cannot say that he has also acquired right over the improved portion. As pointed out earlier, it is not the case of the plaintiff that the defendant No. 1 has made any construction covering land in excess of his half share.
21. In the case of Mallesappa B. Desai (supra) relied upon by Mr. Roychowdhury, the Apex Court was considering the doctrine of blending. The principle of blending is that where a member of a joint Hindu family blends his self-acquired property with property of the joint family, either by bringing his self acquired property into a Joint family account, or bringing Joint family property into his separate account, the effect is that all the property so belanded becomes a joint family property. The aforesaid doctrine, the Apex Court pointed out, inevitably postulates that the owner of the separate property must be a coparcener who has an interest in the coparcenery property and such coparcener desired to blend his separate property with the coparcenery property. The conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to Justify an inference of blending.
22. in the case before us, the plaintiff has not even pleaded the doctrine of blending; on the contrary, he has maintained equal contribution in the improvement which he has failed to prove. Therefore, the said decision cannot help the plaintiff.
23. In the case of Sm. Pushpa Devi (supra), all that has been laid down by the Supreme Court is that a female member of a joint family cannot blend her separate property with the joint family property and hence Income from that property was not assessable in the hands of Hindu undivided family. The said decision therefore cannot have any application to the fact of the present case.
24. Jatindra Mohan Roy v. Ramesh Chandra Roy (supra) is a case where defendant, a member of a joint family, during the absence of the plaintiff,another member of the family, errected a building on a portion of the Joint land in such a way that neither party could have exclusive use of it without injury to the other. Under the aforesaid circumstances this Court held that both the parties should use it jointly, though the strict right of the plaintiff would have been to have the building demolished and to have the land restored to its original position. The aforesaid decision cannot be applied to a case where with the consent of the plaintiff, the defendant No. 1 has constructed the building, restricting its construction with his half-share leaving the remaining half to the plaintiff.
25. The decision in the case of Solaiman Musaji Asmal (supra) rather goes against the plaintiff. In that case it was held that where the parties to a partition suit long ago made their bargain with their eyes open and consequently one person has expended money upon a joint property, at the time of partition, it is reasonable to give such a party such allotment as may enable him to reap the advantage of what he has Invested upon inprovements.
26. In the case of Ramkrishna Mardi (supra), the question was whether the money spent by a Junior member of a family for renovating family house can be claimed back at the time of partition. Such question was answered in negative in the absence of any evidence showing that at the time of repair, it was done with expectation of getting back from joint fund. Therefore, the said decision is of no avail to the plaintiff in the instant case where the younger brother errected a new house claiming absolute ownership.
27. I therefore find that the decisions cited by Mr. Roychowdhury cannot benefit his client in any way. Thus, I affirm the finding of the learned first appellate Court below that the plaintiff has no share in the two storied pucca structure situated in a portion of the land.
28. I, however, find substance in the contention of Mr. Roychowdhury that the learned Court of appeal below could not dismiss the entire suit in view of the fact that the plaintiff has undisputedly half share in the land. Under the aforesaid circumstance, I modify the decree passed by the learned first appellate Court below to this extent that the plaintiff has half share in the 2 1/2 kotthas of land allotted to the plaintiff and defendant No. 1 but the pucca two storied building should be allotted in favour of the defendant No. 1 as the same was constructed by him at his own cost without any objection from plaintiff. The remaining half portion of the land should be allotted to the plaintiff. Such partition however will not be binding upon the State/respondent if the same is in violation of any of the terms of licence.
The appeal is thus disposed of with the aforesaid modification.
No order as to costs.
29. Appeal disposed of