Smti.Farida Siddique And ORS v. Smti. Sitara Begum And ORS

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** CO/48/2024 Smt. Farida Siddique and others Vs Smt. Sitara Begum and others Mr. N.A.Khan ... for the petitioners Ms. Supreet Sharma ... for the opposite party /respondents January 8, 2025 [AKB] Item Nos.4 A photocopy of the partition deed has been filed in the form of supplementary affidavit on behalf of the petitioners. A copy of the same has been delivered upon the learned counsel representing the respondents.

The petitioners have approached this Hon'ble Court under Article 227 of the Constitution of India having been refused to obtain a preliminary decree on the basis of alleged admission on behalf of the opposite parties/plaintiffs, having their prayer for passing preliminary decree in terms of the paragraph 11 (e) of the amended plaint dated 18.01.2022, wherein the plaintiffs have stated the following:- "11(e) That as the deceased Mujeeb-ur-Rehmaan died leaving behind the plaintiffs no. 2, 3 & 4 and the defendant no. 4 and as such the plaintiffs no. 2, 3 & 4 and the defendant no. 4 are entitled to get their respective share in the land measuring an area of 330 sq. Mtrs in survey No. 925 out of total area 561 sq. Mtrs situated at Junglighat Village under Port Blair Tehsil, South Andaman as proposed survey no,. 925/1 as mentioned in the partition deed."

The impugned order has been passed by the learned Trial Judge in Title Suit No. 88 of 2019 dated 12.07.2024 whereby the learned Court has stated as follows:

" But plaintiff denied about the partition deed executed by Mujib Ur Rehman in their plaint and also in written statement. So, no decree on admission could be passed in this suit because there is no unanimity of opinion regarding the partition deed alleged to have been executed by the father of the plaintiff No.2 to 4. As such, no decree can be passed on

admission. Hence, it is ordered that the instant petition U/O 12 Rule 16 CPC is hereby rejected."

The learned counsel for the petitioners submits that the plaintiff No.1 is not within the category of the legal heirs of Mujeeb-Ur-Rehmaan. The learned counsel has also submitted that as there is admission as regards to the presence of the registered deed of partition by the plaintiffs so the learned Trial Judge ought to have passed the preliminary decree in accordance with the admission made in the amended plaint. Learned counsel representing the petitioner has submitted that partition deed is dated 05.09.2011 and the same has been brought to the notice of the plaintiffs through the written statement dated 28.01.2020.

He further submits that the defendants do not admit the fact that the execution or registration of the partition deed was not within the knowledge of the plaintiffs. He also submits that in spite of filing of the written statement on 28.01.2020 and thereafter the amended plaint having been filed on 18.01.2022 and thereafter more than three years having been passed by the plaintiffs have not taken any step or recourse to law in regard to the said partition deed.

Banking upon the aforesaid submission the learned counsel has prayed for setting aside the impugned order dated 12.07.2024.

Per contra, the learned counsel representing the opposite parties/plaintiffs submits that the defendant No. 4 namely Salma Bibi has remarried after the death of Mujeeb-Ur-Rehmaan, as such she is not entitled to the share in respect of said Mujeeb-UrRehmaan. She further submits that the name of the said Salma Bibi has already been expunged by the Trial Court while disposing a petition filed under Order I Rule 10 Sub Rule 2 of the Code of Civil Procedure.

The learned counsel relying upon the aforementioned facts has submitted that the impugned order passed is just and proper and does not require any interference.

Considering the submission of the learned counsels representing the petitioners and the opposite parties and after perusal of the copy of the partition deed filed it transpires that the moot point for consideration is as to whether the plaintiffs have actually admitted the fact of partition taken place between their predecessor and the other co-sharers (defendants) or not. In this respect paragraphs number 11(a), (b), (c) & (d) of the amended plaint are placed, which are as follows: 11 (a) That after going through the written statement, the plaintiffs came to know that subsequently the land bearing survey

no. 925 and 924/2 measuring an area of 561 Sq.Mtrs and 130 Sq.Mtrs situated at Junglighat Village under Port Blair Tehsil was regularised being excess land in favour of defendants no.1,2,3 and Late Mujeeb-Ur-Rehmaan who was the husband of the plaintiff no.1 and father of the plaintiff no. 2 to 4.

11(b) That the defendants have further disclosed that during the lifetime the deceased Mujeeb-Ur-Rehmaan had executed a partition deed along with the defendants no.1,2, & 3 with respect of the land bearing survey no. 924/1,925 and 924/2 measuring an area of 3582 Sq.Feet, 561 Sq.Mtrs and 130 Sq.Mtrs respectively situated at Junglighat Village under Port Blair Tehsil, South Andaman which was duly registered before the Sub-Registrar. 11(c) That as per the partition deed entered between the deceased Mujeeb-Ur-Rehmaan and the defendants no. 1,2 & 3, the Mujeeb-Ur-Rehmaan is entitled to get an area of 330 Sq.Mtrs in survey no. 925/1, the defendant no.1 is entitled to get an area of 169 Sq.Mtrs i.e. an area of 59 Sq.Mtrs in survey no. 924/1/1, 100 Sq.Mtrs in survey no. 924/2/1 and an area of 10 Sq.Mtrs in survey no. 925/3, the defendant no.

2 is entitled to get an area of 206 Sq.Mtrs in survey no. 924/1/2 and the defendant no.3 is entitled to get an area of 167 Sq.Mtrs in survey no. 195/2. 11(d) That as per the partition deed entered between the deceased Mujeeb-Ur-Rehmaan and the defendant no. 1,2 & 3, the deceased Mujeeb-Ur-Rehmaan is entitled to get an area of 330 Sq.Mtrs in survey no. 925 out of total area 561 Sq.Mtrs at Junglighat Village under Port Blair Tehsil being proposed survey no. 925/1.

As regards to the partition deed the learned counsel representing the opposite parties did not raise any objection. As regard to the issue of denial of execution of the partition deed made in the objection to the petition under Order XII Rule 6 of the Code of Civil Procedure, this Court is of the view that a party to the suit cannot go beyond the pleadings. In this aspect this Court refers to the judgment passed by the Hon'ble Supreme Court in the case between Union of India -Vs-Ibrahim Uddin and another reported in (2012) 8 SCC 148 Para 77 & 85.6. Through the said judgement the Division Bench of the Hon'ble Apex Court has stated that relief not founded on the pleadings cannot be granted and also mentioned that a decision of a case cannot be based on the grounds outside the pleadings of the parties and no evidence is permissible to be taken on record in the absence of the pleadings in that respect and no party can be permitted to travel beyond its pleadings and that all necessary and materials facts should be pleaded by the party in support of the case set up by it.

The Hon'ble Judges of the Hon'ble Apex Court have also stated that where evidence was not in the line of the pleadings the said evidence cannot be looked into or relied upon. Through the said judgement it has also been stated that the court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case such evidence has been adduced or finding of fact has been recorded by the court, it is just to be ignored.

As regards to parties before the trial court this court is of the view that, the plaintiffs specifically plaintiffs No. 2, 3 and 4 are required to take appropriate steps in this regard so that only the necessary parties are impleaded and no other party. After taking all steps as regards to the necessary parties by the aforementioned plaintiffs before the Trial court, the Trial Court is to hear the application under Order XII Rule 6 of the Code of Civil Procedure afresh.

It is to be further stated that the learned Trial Court shall not be influenced by the observations made herein. The impugned order dated 12.07.2024 is set aside and the Revisional application is disposed of.

(Supratim Bhattacharya, J.)