Judgment:
Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of a plaintiff in a suit for partition and is directed against the judgment and decree dated 27th April, 1998 passed by the learned Civil Judge, Senior Division, Second Court, Contai, District-Midnapore in Title Suit No. 143 of 1994 thereby dismissing the said suit.
2. Being dissatisfied, the plaintiff has come up with the present appeal.
3. The appellant before us, as plaintiff, filed in the Second Court, Assistant District Judge, Contai, District Midnapore, a suit being Title Suit No. 143 of 1994 thereby praying for partition of his one-sixth share in respect of the suit property and this case may be summed up thus:
a) The suit property belonged to Upendra Nath Shee and Kshirode Chandra Shee having 8 annas share each, and while in such enjoyment and possession, Kshirode died and after his death, his wife Apurba Sundari acquired his 8 annas share and she was in enjoyment and possession of the same jointly with Upendra.
b) While in such enjoyment and possession, Upendra died and after his death, his three sons namely Pradyot, Sisir and Mihir acquired the property left by Upendra each having inherited one-third share of the share of Upendra, and thus, one-sixth share of the entire property.
c) On the death of Apurba Sundari, the property left by her was acquired by the two sons of her deceased daughter, Radha Raman and Radha Ranjan, and they were in possession of the same jointly with Pradyot and his two brothers. Although there was no partition by metes and bounds between the three sons of Upendra and two grandsons of Kshirode, in the settlement record, their names were recorded in separate Khatians in respect of the aforesaid property. The said property were not recorded correctly in fractions but those were recorded in round figure; thus, Pradyot and his other two brothers were in possession of one-sixth share each and Radha Raman and Radha Ranjan were in possession of one- fourth share each.
d) After the death of Pradyot, the property left by him was acquired by his wife and two sons and daughter as his heirs and they were in enjoyment and possession with other co-sharers. Subsequently, the heirs of the said Pradyot partitioned their property by registered deed executed on 27th June, 1986 and by the said deed, the share of Pradyot was acquired by the plaintiff alone, and the plaintiff was in enjoyment and possession of the same along with other co-sharers jointly.
e) Although there is a note of possession by permission in respect of suit Dag No. 511/828 in the name of Haripada Bera, the father of the defendant Nos. 1 to 4, there was no such permission given to him. There is also a note of the status of bargadar in the name of said Haripada Bera in respect of the dag No. 511, after his death, his heirs were not bargadars in view of Section 15(A) of the West Bengal Land Reforms Act. Besides, the defendant Nos. 1 to 4 purchased the property of the said Dag No. 511 and they were in possession along with other co-sharers.
f) The defendants in collusion with each other were trying to harass the plaintiff. Hence the suit.
3. The suit was contested by the defendant Nos. 1 to 4 by filing written statement thereby denying the material allegations made in the plaint and the defence of the defendant may be summed up thus:
a) After the death of Apurba Sundari, her 8 annas share in Ka Schedule Property was recorded in the name of her heirs, namely Radha Raman and Radha Ranjan and they were in possession of the same and while in such possession, they sold their joint 8 annas share to the defendant Nos. 1 to 4 by a sale-deed executed on 21st June, 1972 and delivered possession of the same. Thus, the defendant Nos. 1 to 4 out of (Ka) Schedule property in suit acquired 14 decimals of land by deed of purchase and the remaining properties were in their possession as the heirs of their father as bargadar and by permissive possession, from the then owners after the death of their father.
b) Out of (Ka) Schedule property the defendant Nos. 1 to 4 were in possession of Dag No. 511/828 from the time of their father as licensee by permission from the owners and by spending about Rs. 60,000/- those defendants constructed permanent structure and were residing in the same. Moreover, the defendant Nos. 1 to 4 purchased the share of Radha Raman and Radha Ranjan in Dag No. 511/828 and 511 and hence, became absolute title of holder of the property in the remaining portion of Dag No. 511/828, those defendants having constructed permanent structure as licensee and being in possession of the same. The plaintiff or his predecessor was not in possession of the property and therefore, the suit was liable to be dismissed.
4. The learned Trial Judge, as it appears from the judgment and decree impugned, came to the conclusion that the defendant Nos. 1 to 4 purchased half share in the property from Radha Raman and Radha Ranjan and were in possession of the same. The learned Trial Judge held that the defendant Nos. 1 to 4 had been possessing some portion of Plot No. 511/828 by constructing their residential house long ago and the plaintiff had also been able to show that the defendant Nos. 1 to 4 had not been possessing some portion of Plot No. 511 as bargadar. The learned Trial Judge further held that though there was no prayer of the defendant Nos. 1 to 4 before the appropriate authority for recording their name as bargadar in Plot No. 511, they are all possessing the said Plot No. 511 like their father and, therefore, it should be presumed that they are in possession of some portion of Plot No. 511 as bargadar and there was no prayer of the plaintiff or other person for cancellation of bargadarship. The learned Trial Judge further held that so far the other plot being Plot No. 511/828 was concerned, the defendant Nos. 1 to 4 acquired irrevocable licence as they constructed a house by taking permission from the previous owner. The learned Trial Judge ultimately held that the plaintiff had right, title and interest as owner in the disputed plot but as he was not in possession of the same which was recorded in the name of Haripada Bera and subsequently possessed by his heirs, he could not get any relief in the suit.
5. Being dissatisfied, the plaintiff has come up with the present appeal.
6. After hearing Mr. Sahoo, the learned advocate appearing on behalf of the appellant and Mr. Das, the learned senior advocate appearing on behalf of the defendant Nos. 1 to 4, we find that so far Plot No. 511 is concerned, as a plea has been taken by the defendant Nos. 1 to 4 that there existed relationship of bargadar and owner between the parties in the said plot, the learned Trial Judge instead of dismissing the suit, should have referred the issue to the concerned officer in terms of Section 21(3) of the West Bengal Land Reforms Act for his decision and after receiving the report of the concerned officer, should have decreed the suit accordingly.
7. So far the other plot, namely, Plot No. 511/828 is concerned, the learned Trial Judge has found that the plaintiff has one-sixth share in the said plot but in spite of such finding, has dismissed the suit in respect of that plot. In our view, the plea of irrevocable licence taken by the defendant Nos. 1 to 4 is not available to them in view of the fact that those defendants themselves had acquired undivided half share in the property. If a co-owner of a property constructs a residential house in a portion of the joint property with the consent of the other co-sharer, he can at the most pray for allotment of that portion to him subject to adjustment of his share. Therefore, the learned Trial Judge should have declared one-sixth share of the plaintiff in the Plot No. 511/828 with a direction upon the Commissioner to allot the residential building constructed by the defendant Nos. 1 to 4 with his own money with the consent of other cosharers in their favour subject to adjustment, if necessary, of their half-share. There was, however, no justification of dismissing the suit altogether.
8. We, therefore, set aside the judgement and decree and declare one-sixth share of the plaintiff in Plot No. 511/828 and also in Plot No. 511 with a finding that the defendant Nos. 1 to 4 have constructed the residential building in a part of the Plot No. 511/828 with their own money and the Commissioner while making allotment should allot the building in favour of the defendant Nos. 1 to 4 by adjusting the share of the parties in the land, if the same stands on the land in excess of their share or if for such construction the value of the remaining portion has diminished.
9. So far the other plot being Plot No. 511 is concerned, we direct the learned Trial Judge to refer the issue as to whether the defendant Nos. 1 to 4 are bargadar in respect of the said plot to the concerned officer under West Bengal Land Reforms Act in terms of Section 21(3) of the West Bengal Land Reforms Act and after receiving the report thereof should pass appropriate decree as regards the alleged right of the defendants Nos. 1to 4 as bargadar on the basis of decision on such issue by passing a further preliminary decree. We, however, declare one- sixth share of the plaintiff in the said Plot No. 511 as owner thereof.
10. We, thus, set aside the judgement and decree passed by the learned Trial Judge and pass a preliminary decree in respect of the Plot No. 511/828 and Plot No. 511 by declaring one-sixth share of the plaintiff therein and remand the matter back to the learned Trial Judge for referring the dispute as indicated above in respect of the Plot No. 511. We further direct the learned Trial Judge to pass a further preliminary decree on the basis of finding recorded by the concerned officer as regards the alleged right of the defendants as bargadar. The building constructed on the Plot No. 511/828 should be allotted to the defendant Nos. 1to 4 subject to adjustment of their share if the building is found to have been constructed on the land in excess of the share or by virtue of such construction if the value of the remaining land has become less lucrative.
11. The appeal is, thus, disposed of with the aforesaid observation.
12. In the facts and circumstances, there will be, however, no order as to costs.
13. I agree.