IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Sugato Majumdar SA 57 of 2013 With IA NO: CAN 1 of 2013 (Old No: CAN 2642 of 2013) CAN 2 of 2023 CAN 3 of 2025 Basudev Dhang Vs Joydev Dhang For the Plaintiff : Mr. Sukumar Bhattacharyya, Adv. Ms. Piyali Shaw, Adv. Ms. Oindrila Chatterjee, Adv. Ms. Puja Sarkar, Adv. Ms. Subhangi Bhattacharya, Adv. For the Defendant : Mr. Subhash Chandra Sarkar, Adv. Hearing concluded on : 12.05.2026 Judgment on : 19.05.2026 Sugato Majumdar, J : The instant Second Appeal was filed against the judgment and decree passed by the First Appellate Court dated 18/02/2010 being the Additional District Judge, Fast Track 2nd Court, Howrah in Title Appeal No. 125 of 2006. The plaint case in nutshell is that the Appellant/Plaintiff and the Respondent/Defendant are brothers. The paternal aunt of the parties herein P a g e | 2 intended to gift her property to both the brothers. However, she executed a gift deed only in favour of the Respondent/Defendant being the elder brother though the property was treated as a joint property. The Appellant/Plaintiff became the owner of the property in Schedule-A within holding no. 47/4 (part), presently 47/4A, Sree Ram Dhang Road, District: Howrah and the Respondent/Defendant became owner of the property in Schedule-B of the suit, within holding no. 47/4 (part), presently 47/4B, Sree Ram Dhang Road along with undivided half share of land, by virtue of a deed of partition dated 06/03/1995 which was duly registered. By virtue of the aforesaid deed of partition, the Appellant/Plaintiff became owner of Schedule-A property lying at the ground floor of the premises, the Respondent/Defendant became owner of the Schedule-B property being the 1st Floor along with all right, easement, privileges and amenities including undivided share of land over the said property. The Appellant/Plaintiff got mutation in respect of Schedule-A property and has been paying tax to the Howrah Municipal Corporation. On the eastern side of Schedule-A property, there is a vacant plot within holding no. 47/4 Shri Ram Dhang Road. 50 % of the said vacant plot of land lying and situated on the north eastern side has been allotted to the Appellant/Plaintiff whereas rest 50% of the south eastern side was allotted to the Respondent/Defendant in terms of the deed of partition. However, there is no demarcation of plot of land which was Schedule-C property. Now Respondent/Defendant was taking law on his own hand and demarcated more than 50% of the said vacant plot of land and has also illegally encroached the Schedule-C property. It was also alleged that the Respondent/Defendant may construct illegal and unauthorized construction of building in Schedule-C property. In this context of facts, the Appellant/Plaintiff filed the suit, praying for decree of declaration to the effect that the Appellant/Plaintiff has right, title and interest over Schedule-C property on which the Respondent/Defendant has no right to make a legal construction; decree of P a g e | 3 declaration that the Respondent/Defendant has no right to disturb or interfere the common user of staircase and other easement privileges annexed; decree of permanent injunction, restraining the Respondent/Defendant from disturbing and/or interfering with peaceful possession of the Appellant/Plaintiff in Schedule-C property along with other prayers. The Respondent/Defendant contested the suit by filing written statement denying all allegations. It was contended that the Respondent/Defendant being the elder brother allowed the Appellant/Plaintiff to stay and reside within the suit property. It was contended that the partition deed was a pseudo document which was never a lawful partition but an amicable arrangement similar to provide the right of occupation of the Appellant/Plaintiff in a portion of suit property. It was further contended that the Appellant/Plaintiff could never acquire any ownership at any point of time as the gift deed dated 03/10/1972 bestowed ownership on the Respondent/Defendant solely. Denying all other allegations, it was contended that the suit should be dismissed. The Trial Court dismissed the suit and observed that there was no joint property between the Appellant/Plaintiff and the Respondent/Defendant; it was also observed that the alleged deed of partition did not confer in right, title and interest on the Appellant/Plaintiff in respect of the suit property. It was also observed that although the name of the Appellant/Plaintiff was entered into the records of Howrah Municipality as an owner, mutation of name does not confer any title. On being aggrieved and dissatisfied, the Appellant/Plaintiff preferred an appeal. The Learned Additional District Judge, First Tract Court II, Howrah, dismissed the appeal upholding the judgment and decree passed by the Learned Trial Court. P a g e | 4 On being aggrieved and dissatisfied, the instant appeal was filed. The substantial question of law framed was as follow: Whether the Defendant can question the title of the Plaintiff on the basis of a registered deed of partition when both the Plaintiff and the Defendant where parties to the same, particularly, when the deed of partition was not challenged in the suit by filing a counter claim? It was contended by the Learned Counsel for the Appellant that the Plaintiff became owner of the property in question and got right, title, interest in Schedule-C property in terms of the deed of partition. Recitals of the partition deed clearly stated that the deceased paternal aunt and uncle and both the parties were admittedly thika proja under deity of the then Jamindar. So, sebait had no right to execute the long term lease in favour of thika proja, Nagendra Nath Hazra in violation of Calcutta Thika Tenancy Act, 1949 and also the Trust Act. Therefore, the partition deed is not a pseudo document. Secondly, it was argued that the Respondent/Defendant has not acquired any right on the basis of the gift deed. The aunt could not transfer more than what she possessed. Moreover, the Appellant/Plaintiff was a thika tenant, he inherited thika tenancy right and, therefore, he has equal rights on the property as the Respondent/defendant in respect of the land. It was contended that both the parties invested equal sum of money in raising construction on the suit property with respect to the structure in question. Recitals of the partition deed were not considered. According to the Learned Counsel for the Appellant/Plaintiff, both the Court erred in law and instant appeal should be allowed. The Learned Counsel for the Appellant/Plaintiff relied upon Hamida Begum alias Alo Bibi Vs. Umran Bibi & Ors. [(2008) SCC OnLine Cal 177]. P a g e | 5 The Learned Counsel for the Respondent/Defendant submitted that there cannot be a partition deed with a stranger. By partition deed, the property cannot be transferred. It was further argued that new facts cannot be raised in the second appeal. The alleged partition deed contained signatures of eight persons. It was not explained why all the family members signed the partition deed. According to the Learned Counsel the alleged partition deed is void ab initio and that the appeal should be dismissed with exemplary costs. Admittedly, the gift deed was in the name of Respondent/Defendant. The recitals of the partition deed itself showed that Nagendra Nath Hazra, the husband of the paternal aunt was a thika proja under a debutter property. His ownership was not absolute. What, therefore, the paternal aunt transferred to the Respondent/Defendant was not absolute ownership. Declaration was sought by the Appellant/Plaintiff but these particulars are not in a pleading or in the plaint. For deciding and declaring title in the suit properties the entire conspectus of facts should be considered which are absent in the plaint. For the first time, these questions of fact are raised in second appeal. Firstly, new facts which could have been incorporated in the plaint but not done cannot be heard in the second appeal. Secondly, the ownership of the Appellant/Plaintiff, the consideration of the declaratory decree in favour of the Appellant/Plaintiff in respect of right, title, interest cannot be made without considering this actual context and nature of ownership. These were not in pleadings. Therefore, this prayer cannot be allowed. Secondly, the partition deed can be made between two co-owners. The Appellant/Plaintiff is, of course, not the owner since there was no gift deed in his favour. But the nature of right is to be considered and could not be considered in absence of pleading of facts, as observed above. From the pleading, it is clear that gift deed was made in favour of the Respondent/Defendant and at a time of P a g e | 6 execution of a partition deed, the Appellant/Plaintiff had no title or ownership of the property. Therefore, though this Court deprecate inference drawn by the First Appellate Court, that the partition deed is void, without explaining any reason. This Court deprecate the manner of finding. But does not impel to consider declaration of ownership, in absence of pleadings, as stated above. The Learned Counsel for the Appellant/Plaintiff raised new questions of facts like existence of debutter property or thika tenancy by virtue of which the Appellant/Plaintiff had already acquired interest prior to the deed of partition but these are not in the pleadings, so cannot be considered and adjudicated upon. To this extent, both the Court came to right conclusion though this Court coming sudden conclusion by the First Appellate Court that the partition deed is void. It is admitted position that the Appellant/Plaintiff is in occupation of the suit premises. It was admitted by the Respondent/Defendant in the written statement that the partition deed is basically an amicable arrangement similar to provide the right of occupation of the Appellant/Plaintiff a portion of the suit property. Manifestly, the Appellant/Plaintiff is not a squatter but has certain right of occupation. Therefore, this Court is inclined to pass an order of permanent injunction, restraining the Respondent/Defendant from interfering with the possession of the Appellant/Plaintiff in the Schedule-A property without due process of law. However, he is at liberty to institute appropriate suit for recovery of possession. It is clarified that this Court did not decide on the title of the property, since proper pleadings are not there. In nutshell, the instant appeal is partly allowed. The Respondents/Defendants are restrained permanently not to interfere with the P a g e | 7 possession of the Appellant/Plaintiff of the ‘A’ Scheduled property except by due process of law. The instant appeal stands disposed of. Trial Court Record may be returned. Decree may be drawn up. (Sugato Majumdar, J.)