Judgment:
The Court : The applicants are not parties to this partition suit. The applicants claim to be owners of premises no.44, Mott Lane and 33, Dharmatalla Street. The applicants had applied earlier in or about the year 1994 and at their instance an order was passed on March 30, 1994. It is necessary to notice two of the paragraphs of the order dated March 30,1994:
The suit was filed in 1955 for partition by metes and bounds of various properties claimed to be the joint family properties. Amongst the properties which were so claimed were the leasehold properties at 44, Motts Lane, Calcutta and at 33, Dharamatalla Street, Calcutta. The preliminary decree was passed in the matter on 19th Sept., 1960. The preliminary decree specifically provides that the properties mentioned in schedule A to the decree were the joint family properties and the properties mentioned in Schedule B were not liable to be partitioned as they had not been proved to belong to the joint family. The leasehold properties at 44, Mott Lane, Calcutta and at 33 Dharmatalla Street, Calcutta were mentioned in Schedule B and therefore, stood excluded from partition.
The effect of the order dated March 30, 1994 was that the present applicants stand was vindicated that the two properties at Mott Lane and Dharmatalla Street did not belong to the joint family to which the parties to the suit belonged. The allegations made in the present application relate to the interference by the defendant no.1F and persons allegedly claiming under him interfering with the applicants rights in respect of the Dharmatalla Street property.
Despite service no affidavit has been filed by the parties to the suit and none appears on behalf of the parties at the second call. The applicants say that the order dated March 30, 1994 has not been upset and the parties have chosen not to present themselves to demonstrate that such order has been set aside or otherwise modified. What is evident today is that the order dated March 30, 1994 recognized that the properties at 44, Mott Lane and 33, Dharmatalla Street did not belong to the joint family involved in the present suit and were not liable to be partitioned or otherwise divided between the parties.
Such order noticed that the preliminary decree had specifically provided that the two properties had not been proved to be part of the joint family assets. Since the two properties had been included in the schedules to the plaint relating to this partition suit, the applicants were justified in approaching the Court to ensure that the properties claimed by the applicants were not included as joint family assets or were not subject to the orders that were made in this suit.
The Court noticed that the two properties did not belong to the joint family and in the order dated March 30, 1994 observed accordingly. The order dated March 30, 1994, however, did not recognise the applicants to be the owners of the two immovable properties as the applicants title thereto is not an issue in the present suit.
All that the order noticed was that the two properties did not form part of the suit properties without conclusively upholding the applicants title thereto. The present claim is that one or more of the parties to the partition suit have sought to interfere with the applicants possession or rights relating to one of the two properties referred to in the order dated March 30, 1994. If these applicants are to be entitled to any order, a prima facie case has to be made out as two these applicants title to the relevant property.
These applicants cannot even attempt to establish prima facie title in respect of either of the properties since the suit does not include the two properties as has been clarified by the preliminary decree of 1960 and observed in the order dated March 30, 1994.
In any event, if a party to the partition suit has done anything wrongful or has attempted to interfere with the applicants rights to any property to which the applicants are entitled, it would not entitle the applicant to approach this Court by way of an interlocutory application in this partition suit as the applicants remedy would lie elsewhere and would, one should think, involve payment of Court fees before any order can be obtained. In view of the clear observation in the order dated March 30, 1994 that the Mott Lane and Dharmatalla Street properties did not belong to the joint assets of the parities to the partition suit, there would no further room for these applicants to approach this Court by way of an application in the partition suit even if one of the parties to this Court had attempted to interfere with the alleged rights of the applicants relating to either of the immovable properties.
The disputes relating to properties not covered by the suit cannot be taken up, whatever exalted rights these applicants may claim and however grievously they may have been wronged by one or more parties to the suit.
Significantly, it is not the applicants case that the alleged offending party has cited any order passed in this partition suit as the justification for the alleged interference. The present application is clearly way beyond the ambit of this partition suit. GA No.2103 of 2002 is dismissed.
There will be no order as to costs. This order will not preclude the applicants from asserting their rights in respect of either of the properties and seeking the same reliefs in properly constituted proceedings.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.