Gitarani Dan and ors. Vs. Manik Chandra Dan and ors.

Gitarani Dan and ors. vs Manik Chandra Dan and ors.

Type Court Judgment Court Kolkata Appellate Decided Jan 25, 2011

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https://sooperkanoon.com/case/911725

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Citation: sooperkanoon.com/911725
Court: Kolkata Appellate High Court
Judge: Prasenjit Mandal, J.
Decided On: Jan 25, 2011
Case Number: C.O. No. 3604 of 2009
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

[MOHIT S. SHAH; S.J. VAZIFDAR, JJ.] - The respondents contended that they are the proprietors inter-alia of the trade mark 555 written in a stylized manner. The respondents claim to be the assignees of this mark. The mark was assigned from time to time. Ultimately by a Deed of Assignment dated 14.9.2004, the registe...

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Gitarani Dan and ors.

Advocate Mr. Kartick Bhattacharya, Adv

Respondent

Manik Chandra Dan and ors.

Advocate Mr. Jaharlal Dey, Adv

Excerpt

.....mark is pending. the respondents have used the trade mark label 555 in conjunction with other marks such as meredian, merelane delux and merelane premium. see also, fuentes trade marks (1891, 2 ch.,166)." the above observations establish that it is a defence even to an action for passing off or infringement of a trade mark that the plaintiffs (in this case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents' marks/cartons/labels are an imitation of the mark state express 555. it is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the court to come to the conclusion that the respondents had infringed the mark. if it is established that the mark is a well known mark, the mark being used in respect of different goods may make no difference. firstly, whether the principle would apply even if the mark is not established to be a well known mark. secondly, whether the principle would apply if such a mark i.e. not a well known mark, infringed by the respondents is applied to different goods. the goods need not be identical even if a well known mark is not involved. .....title suit being title suit no.23 of 2005 for partition mentioning several properties under the two schedules, described as schedule a and schedule b to the plaint. the plaintiffs have claimed for a decree of partition declaring 7/8th share in the suit properties against the defendants. in that suit, the plaintiffs have also described that as regards schedule b properties, the plaintiffs nos. 1 to 4 only have 4/5th share in the suit properties and the defendants have 1/5th share in the suit properties. but the prayer for decree has been sought for declaring share of the plaintiffs to the extent of 7/8th share in the suit properties meaning thereby the schedule a and as well as schedule b properties.5. though the contention of the plaintiffs was to the effect that the father of the plaintiffs purchased the b schedule properties, ultimately, the plaintiffs have contended that since the deed lies in the names of the plaintiff nos.1 to 4, each having one unit, and the defendants having one unit and the plaintiffs are claiming 4/5th share in the schedule b properties and they are admitting the 1/5th share of the defendants in the b schedule properties. under such circumstances, at the stage of peremptory hearing, the defendants have filed the said application for directing the plaintiffs to have election or the court to pass appropriate orders on the said application.6. from the above facts, it is clear that though there are 12 plaintiffs in the said suit, so far as the b schedule properties are concerned, the plaintiff nos.1 to 4 claim 4/5th share therein admitting at the same time 1/5th share of the defendants in the said properties. so, all the plaintiffs are not the joint owners of the b schedule properties. thus, the plaintiff nos.1 to 4 have claimed their right, title and interest in respect of the suit b properties in this fashion in the same suit.7. so far as the a schedule properties are concerned, all the plaintiffs have claimed that they have 7/8th share in.....

Full Judgment

1. Challenge is to the order dated April 7, 2009 passed by the learned Civil Judge (Senior Division), Suri in Title Suit No.23 of 2005 thereby rejecting an application filed by the defendants under Order 1 Rule 2 read with Order 2 Rule 6 of the Code of Civil Procedure.

2. The short fact is that the plaintiffs/opposite parties herein instituted a suit being Title Suit No.23 of 2005 for partition. In that suit, the defendants are contesting by filing a written statement. The suit was at the stage of peremptory hearing. At that time, the defendants/petitioners herein filed an application under Order 1 Rule 2 read with Order 2 Rule 6 of the C.P.C. contending, inter alia, that the suit is bad for misjoinder of parties and non-joinder of causes of action in a single suit. So, they submitted before Court for passing appropriate orders for separate trials in respect of the properties mentioned in the schedule B of the plaint. That application was rejected by the impugned order. Being aggrieved, this application has been preferred by the defendants.

3. Now the question is whether the impugned order should be sustained.

4.Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiffs instituted the said title suit being Title Suit No.23 of 2005 for partition mentioning several properties under the two schedules, described as schedule A and Schedule B to the plaint. The plaintiffs have claimed for a decree of partition declaring 7/8th share in the suit properties against the defendants. In that suit, the plaintiffs have also described that as regards schedule B properties, the plaintiffs nos. 1 to 4 only have 4/5th share in the suit properties and the defendants have 1/5th share in the suit properties. But the prayer for decree has been sought for declaring share of the plaintiffs to the extent of 7/8th share in the suit properties meaning thereby the schedule A and as well as schedule B properties.

5. Though the contention of the plaintiffs was to the effect that the father of the plaintiffs purchased the B schedule properties, ultimately, the plaintiffs have contended that since the deed lies in the names of the plaintiff nos.1 to 4, each having one unit, and the defendants having one unit and the plaintiffs are claiming 4/5th share in the schedule B properties and they are admitting the 1/5th share of the defendants in the B schedule properties. Under such circumstances, at the stage of peremptory hearing, the defendants have filed the said application for directing the plaintiffs to have election or the Court to pass appropriate orders on the said application.

6. From the above facts, it is clear that though there are 12 plaintiffs in the said suit, so far as the B schedule properties are concerned, the plaintiff nos.1 to 4 claim 4/5th share therein admitting at the same time 1/5th share of the defendants in the said properties. So, all the plaintiffs are not the joint owners of the B schedule properties. Thus, the plaintiff nos.1 to 4 have claimed their right, title and interest in respect of the suit B properties in this fashion in the same suit.

7. So far as the A schedule properties are concerned, all the plaintiffs have claimed that they have 7/8th share in the said properties and the rest 1/8th share to the defendants. Therefore, so far as the A schedule properties are concerned, the suit can well proceed in the present form.

So far as the B schedule properties are concerned, I find that this B schedule properties do not belong to all the parties to the suit. Alternatively, it cannot be said that these are the joint properties of the parties to the suit.

8. Since share of the parties with regard to the suit properties is admitted, there will not be any difficulty in granting a preliminary decree for partition. But, the dispute may crop up in the subsequent proceedings to be adopted, if necessary, after passing of the preliminary decree for partition. Since the parties are fighting, it is expected that if a preliminary decree for partition is passed, parties may not be able to effect partition effectively according to the preliminary decree and further steps such as appointment of a partition commissioner may be necessary to effect partition according to the preliminary decree to be passed. At that time, it may be difficult for the partition commissioner to allot separate share to the so many parties to the suit separately particularly when the plaintiffs have no uniform share in the suit properties. There may be other embarrassing situation, such as, payment of stamp duty for engrossing the final decree to be passed in the partition suit and it may also be difficult for the parties to decide the costs to be paid by each party. Moreover, the commissioner may commit wrong in assessing the share of each of the so many parties in respect of so many properties declaring different share of the parties therein. So, it will not be an easy job for a commissioner to hold partition in respect of the suit properties amongst the co-owners.

9. If two commissioners are appointed, it may not also be an easy task for the Court to pass the final decree in respect of reports to be submitted by the two partition commissioners. There shall be one final decree in the suit and for that reason, the parties may take several steps particularly by the person who is in better possession with regard to the possession of the suit properties to prolong the litigation. Ultimately, it will be an embarrassing position for the learned Court to pass a single final decree on the basis of the reports to be filed by the two commissioners, if appointed. In any way, it will not be an easy job either for the commissioner or for the Court to do their respective functions for arriving at the final stage for passing the final decree for partition.

10. These are some of the hurdles to be crossed by the parties before reaching at the stage of passing the final decree for partition.

11. Mr. Bhattacharya, learned Advocate appearing on behalf of the petitioners, submits that the cause of action is not proper. He submits that a single date, that is, on and from July 17, 2005 has been mentioned in the plaint as the cause of action in respect of different properties with regard to the plaintiffs and defendants having different share in the suit properties. So, the cause of action has not been properly explained. He also submits that valuation of the properties mentioned in the two schedules have not been clearly stated.

12. So far as cause of action, I think, that if it is described that the cause of action arose on and from July 17, 2005, it is enough to institute a suit for partition. So far as the valuation of the suit is concerned, such valuation is tentative and the actual valuation may be taken into consideration at the time of effecting partition by passing the final decree for partition. The partition commissioner shall assess the valuation upon taking into consideration the factors that are necessary for arriving at a conclusion relating to the valuation. So, for the purpose of passing a decree for partition, the consolidated valuation as submitted by the plaintiffs can be accepted for the time being. Mr. Dey, learned Advocate appearing on behalf of the opposite parties, submits that in a suit for partition, all the parties need not have the same share and even a partition suit may be lodged against a person whose status is nothing but a stranger with regard to the suit property. In support of his submission Mr. Dey refers to the decision reported in AIR 1933 Lahore 780 particularly at page 781, AIR 1958 Cal 710 Head Note B and (2003) 3 SCC 327 particularly paragraph no.7 and thus he submits that the suit for partition in the present form can well be maintained and an effective decree can well be passed. He also submits that two partition commissioners may be appointed, if the Court thinks fit. So far as the appointment of two commissioners are concerned, I am of the view that before passing any decree for partition in the preliminary form, this revisional Court cannot dictate or give any indication how the matter shall be dealt with by the parties or the Court, post preliminary decree. Entire matter depends upon the situation and the parties are to take necessary steps accordingly. But, if two partition commissioners are appointed, the difficulties as indicated earlier for example may, crop up. This being the position, though the application under order 1 Rule 2 read with Order 2 Rule 6 of the C.P.C. was filed at the belated stage of peremptory hearing, I hold, that there is substance in the application and it should have been allowed by the learned Trial Judge. It will not be wise at all to support the impugned order and to allow the learned Trial Judge to proceed with the matter in order to solve the dispute between the parties once for all particularly having regard to the number of co-owners and the number of plots involved in the suit. I am of the view that the plaintiffs should be given option to elect whether he should proceed with the present suit with regard to the A schedule properties only and he should take leave from the Court to file a fresh suit for partition with regard to the B schedule properties on the same cause of action. In any way, if the parties are allowed to proceed with the suit in the present form, it will cause delay in the trial of the suit and many issues may crop up before the suit reaches at the stage of passing the final decree. Thereafter, the execution case would follow for effecting partition according to the final decree. Under the above facts and circumstances, I am of the view that the impugned order cannot be sustained.

13. The application is, therefore, allowed. The impugned order is hereby set aside.

14. The plaintiffs are given option to exercise their election as indicated earlier within 60 days from the date of communication of this order to the court below.

15. The plaintiffs are hereby given liberty to take suitable steps for amendment of the plaint including the change of valuation of the suit properties. He may also pray for leave to file another suit for partition with regard to B schedule properties on the selfsame cause of action.

16. If no election is adopted within the aforesaid period, the learned Trial Judge shall proceed with the suit in accordance with law.

17. Considering the circumstances, there will be no order as to costs.

18. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.

Same Court & Year Kolkata Appellate · 2011 Same Parties Gitarani Dan and ors. vs Manik Chandra Dan and ors. Same Subject Land Acquisition Same Judge Prasenjit Mandal, J.

Land Acquisition