Form No. J(1)

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Present :

The Hon’ble Justice Rajasekhar Mantha

And

The Hon’ble Justice Rai Chattopadyay

F.A. 378 of 1997

With

CAN 9 of 2024

With

CAN 10 of 2024

With

CAN 13 of 2025

Laxmi Narayan Gope

v.

Sushil Gope

For the Appellants : Mr. Rabindranath Mahato

Mr. Amit Bikram Mahato

For the Respondents : Mr. Probal Mukherjee, Senior Advocate

Mr. Falguni Bandyopadhyay

Ms. Sreetama Neogi

Judgment reserved on : March 11, 2026

Judgment pronounced on : March 16, 2026

Rajasekhar Mantha, J.:

1. The subject appeal is directed against the judgment and preliminary

decree dated 19

th December, 1994, passed by the learned Additional

Sessions Judge, Purulia in Title Suit No. 89 of 1990.

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2. The suit for partition was filed in respect of the properties standing

in the name of the common ancestor/predecessor-in-interest of the

parties, one Dhanu Gope. The schedule to the plaint, inter alia, has set

out the properties in CS Khatian No. 21 comprising 5.24 acres of land and

in CS Khatian No. 23 comprising about 70 acres of land in the district of

Purulia under PS Purulia Mufassil.

3. The question involved in the subject appeal is whether the

properties comprising in CS No. 21 having not been made the subject

matter of a prior suit for partition, can at all be made subject matter of the

present/subsequent partition suit. A further issue would arise, i.e.

whether there is evidence on record to suggest that the properties in CS

Plot no. 21 are the joint properties of the the common ancestor Dhanu

Gope.

FACTS OF THE CASE

4. The predecessor-in-interest of the present plaintiffs and defendants

filed the partition suit being TS No. 184 of 1926 (first partition suit). The

subject matter of the said suit were the properties standing in the name of

Dhanu Gope in CS Khatian No. 23.

5. The first partition suit resulted in a compromise decree dated 4

th

June, 1929. The said compromise decree set out the shares of 8

predecessors of the present plaintiffs and defendants qua the properties

comprised in CS Khaitan no. 23. There was, however no mention of any

property under CS Khatian No. 21 in the said suit or the compromise

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decree. Admittedly apart from appointment of a commissioner for partition

the properties no final decree was passed and the formal subdivision of

properties did not occur.

6. The present suit, Title Suit No. 89 of 1990(second partition suit),

filed by the present plaintiffs and defendants, who are the descendants of

the parties of the first partition suit, seeks partition the properties of

Dhanu Gope, allegedly comprised in CS Khaitan. 21 and CS Khatian

No.23. Admittedly CS Khaitan no. 21 was left out from the ambit of the

first partition suit. The properties in CS no. 21 however were very much in

existence at the time of the filing of the first partition suit. The second

partition suit therefore has to be considered in light of principle of

constructive res judicata as well.

7. The plaint of present suit mentions the earlier TS No. 184 of 1926,

and the compromise decree dated 4

th June 1929. A report of the

Commissioner of partition dividing the properties comprised in CS. No. 23

filed in the earlier suit was also referred to in the said plaint. There is,

however, no explanation in the plaint as to why CS Khatian No. 21 was

not made the subject matter of the first partition suit.

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8. In the written statement filed in the present suit, the appellants,

inter alia, pleaded as follows:

a. The suit is barred by the principles of res judicata and bad for

non-joinder of parties.

b. Section 11 of the CPC was invoked by the appellants, inter

alia, on the ground that all properties that stood in the name

of the original predecessor of the parties, Dhanu Gope were

already partitioned by the reason of the earlier compromise

decree dated 4

th

June, 1929 passed in TS No. 184 of 1926 and

the report of the Commissioner of the partition. It was also

contended that since thereafter, the successor in interest of

Dhanu Gope are holding their respective properties.

9. Across the bar, Mr. Mahato, learned Counsel for the appellant/

defendants in the suit has admitted that two portions of Khatian No.

23 namely Bakshi Bandh Tarn and Tilai Bandh Tarn must be deemed

ejmali properties without partition. As per report of the Commissioner

or partition in the earlier suit, the usufruct thereof namely the standing

trees were be sold and the proceeds thereof were to be equally

distributed between the plaintiffs and/or their successor in interest, of

the said first partition suit being TS No. 184 of 1926.

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10. Mr. Mahato has argued that CS Khatian No. 21 was the self-

acquired property of one of the son of Dhanu Gope namely Bholu Gope.

The same therefore could not form part of the properties within the

hotchpot of the properties of Dhanu Gope and hence could not be the

subject matter of partition of the instant suit.

11. The plea of non-joinder and mis-joinder of parties was advanced in

respect of certain defendants who are either stated to have transferred

their share in the properties of the predecessor-in-interest. The

transferees have not been made parties to the suit.

12. The Trial Court, based on the pleadings on record, framed the

following issues:-

i. Have the plaintiffs any cause of action for the suit?

ii. Is the suit barred by limitation?

iii. Is the suit bad for non-joinder and misjoinder of parties.

iv. Is the genealogy given in the bottom of the plaint is

incomplete?

v. Is the suit bad for partial partition?

vi. Is the suit barred by principle of res judicata?

vii. Have the plaintiffs the share in schedule 2 of the suit

property, as alleged in the paragraph 9 of the suit plaint?

viii. Are the plaintiffs entitled to get decree for partition as prayed

in the suit plaint?

ix. To what other reliefs or relief are the plaintiffs entitled to get?

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THE EVIDENCE ON RECORD.

13. The plaintiff and defendant examined one witness each. PW 1 was

Raghu Gope.

14. The compromise decree dated 4

th June, 1929 in TS No. 184 of 1926

and the Commissioner’s report were exhibited and taken on record. Copies

of the RSROR of Khatian No. 46 under Mouza Belkuri, CS Khatian No. 23

of Mouza Belkuri, RSROR of Khatian No. 23 and purported RSROR of

Khatian No. 21 were exhibited and taken on record.

15. It must be mentioned at this stage that the decree dated 4

th

June,

1929 in TS No. 184 of 1926 was passed before the cadastral survey of

revenue records was undertaken. Subsequent thereto CS Khatian No. 23

came to be divided into two separate RS Khatian numbers under the RS

operation in the State. The same resulted in RS Khatian No. 298 and RS

Khatian No. 48. There is no mention of the change of CS Khatian No. 21

into any other RS Khatian numbers in the impugned judgment or the

plaint.

16. In the cross-examination, PW 1 Raghu Gope has admitted that the

property of 5.25 acres in CS Khatian No. 21 originally stood in the name of

Bholu Gope but also in the same breath stated that the property did not

belong to Bholu Gope in its entirety.

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17. He further admitted that the properties in Khatian No. 23 were

inherited by the sons of Dhanu Gope after his death. There is no

explanation from the evidence of PW 1 as to why CS Khatian No. 21 did

not form subject matter of the earlier TS No. 184 of 2025.

18. Shripati Gope was DW 1. He was defendant no. 43 in the suit. He

deposed in his examination in chief that CS Khatian No. 21 stood recorded

exclusively in the name of Bholu Gope. He further deposed about the

compromise decree dated 4

th

June, 1929 in TS No. 184 of 1926 in respect

of Khatian No. 23 and the compromise decree obtained from the Court of

the learned Munshif at Purulia.

19. He also deposed that in the compromise decree, the properties

namely Bakshi Bandh Tarn and Talai Tarn were left undivided and ejmali

amongst the legal heirs of Dhanu Gope. He further deposed that the

properties in CS Khatian No. 23 were equally divided amongst the legal

heirs of Dhanu Gope and came in the RS record of rights. The ROR and

certified copy of the decree dated 4

th June, 1929 were marked as exhibits.

20. He denied that any sale proceeds of the aforesaid Bakshi Tarn and

Telai Tarn were received by any of the parties to the said TS No. 184 of

1926.

21. Based on the evidence, the Trial Judge decreed the suit in

preliminary form. The Trial Court answered issue nos. 1 to 4 in favour of

the plaintiff. Issue nos. 5 to 8 being the moot issues as regards the

maintainability of the suit in the Trial Court were also answered in favour

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of the plaintiff. The Trial Judge was of the view that the compromise

decree in TS No. 184 of 1926 and the partition Commissioner’s report was

not given effect to by the parties.

THE JUDGEMENT OF THE TRIAL COURT

22. The Trial Judge by placing reliance on the decision of a coordinate

bench of this Court in (Ramprasad Mondal vs. Smt. Snehalata Ghosh)

reported in 1966 SCC OnLine Cal 167 held that the second partition

suit is maintainable.

23. Bholu Gope according to the Trial Judge did not acquire CS Khatian

No. 21 or portions of CS Khatian No. 23 from his own sources but has

inherited the same from Dhanu Gope. The Trial Judge was of the view that

it was not clear from the evidence on record as to what exactly was the

subject matter of the partition suit being TS No. 184 of 1926.

24. The Trial Judge held that since Bakshi Bandh Tarn and Telai Tarn

were admittedly left as ejmali property. Hence a major portion of the suit

land in TS No. 184 of 1926 remained un-partitioned. The Trial Judge

applied the decision of another coordinate Bench of this Court in the case

of Sasi Mohan Saha and ORS v. Hari Nath Saha reported in (1928) AIR

(Calcutta) 459 to hold that the instant suit was maintainable.

25. The Trial Judge further found that the appellants herein could not

prove that Bholu Gope acquired property of 5.25 acres in CS Khatian No.

21. According to the Trial Judge, DW 1 could not indicate the extent of an

area of Bakshi and Telai Tarn.

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26. Based on the above, the Trial Court went on to hold that the

plaintiffs respondents have a lawful share in CS Khatian No. 21 along with

CS Khatian No. 23. According to the Trial Court both the properties were

originally owned by Dhanu Gope and hence liable to partition in subject

suit.

ANALYSIS OF THIS COURT

27. This Court has carefully heard the arguments of Mr. Mahato,

learned Counsel for the appellants/defendants and Mr. Prabal Mukherjee,

learned Senior Counsel for the plaintiffs/respondents.

28. The Trial Court has called upon the appellants/defendants to prove

that the properties in CS no. 21 are self-acquired. The said approach of

the Trial Court is incorrect, in view of the fact that the

plaintiffs/respondents have not proved that the said properties are joint

properties. The burden to prove that the properties in CS no. 21 are self-

acquired cannot be shifted to the appellants unless the plaintiffs/

respondents have discharged the initial burden of proving that the said

properties are joint properties.

29. There is no presumption that a property is a joint family property.

The plaintiff has to prove that a property is a joint family property. The

said presumption however arises when the plaintiff proves that there is a

joint family fund. The joint family fund gives rise to the presumption that

the property at issue may have been purchased from the joint family

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funds. The presumption will arise when the plaintiff links the acquisition

of the property with the joint family fund.

30. The aforesaid presumption is rebuttal in nature. It calls upon the

defendant objecting to the partition to prove that the said property is self-

acquired. In Angadi Chandranna V. Shankar & Ors . reported in 2025

INSC 532, it was held as follows:-

13. Further, it is a settled principle of law that there is no

presumption of a property being joint family property only on

account of existence of a joint Hindu family. The one who

asserts has to prove that the property is a joint family

property. If, however, the person so asserting proves that

there was nucleus with which the joint family property could

be acquired, then there would be presumption of the property

being joint and the onus would shift on the person who claims

it to be self-acquired property to prove that he purchased the

property with his own funds and not out of joint family

nucleus that was available. That apart, while considering the

term ‘nucleus’ it should always be borne in mind that such

nucleus has to be established as a matter of fact and the existence

of such nucleus cannot normally be presumed or assumed on

probabilities. This Court in R.Deivanai Ammal (Died) v. G.

Meenakshi Ammal12, dealt with the concept of Hindu Law,

ancestral property and the nucleus existing therein

Emphasis applied

31. In the present case, the plaintiff has not been able to prove that

the properties comprising in CS no. 21 is a joint family property. The

plaintiff was further unable to prove that there was a joint family

fund. Therefore there is no presumption that of CS no. 21 is a joint

family property. The trial court in the impugned judgment therefore

has erroneously called upon the defendants/appellants to prove that

the said properties are self-acquired properties of Bholu Gope.

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32. The impugned judgment of the trial Court declaring that the

properties comprising in CS no. 21 are joint family properties, is ex

facie erroneous and needs to be set aside on this score alone.

33. As regards whether the properties in CS no. 21 at all could have

formed subject matter of second partition suit, we find that the Trial

Court has erroneously interpreted and applied the decision in Sasi

Mohan Saha (supra).

34. In Sasi Mohan Saha (supra) the court has alluded to three

situations when a second partition suit would lie in respect of

properties subject matter of an earlier suit, can be sought. The first

situation is when the first partition suit has either intentionally or by

mistake excluded certain joint properties and no objection was raised

to such exclusion, then a second partition suit would be maintainable

as regards the said excluded properties. The said excluded properties

must, however, remain in the joint possession of the parties to

maintain a second partition suit.

35. In the present case, the first partition suit did not even mention the

properties in CS no. 21. Thus, the predecessor in interest of the

defendants/appellants had no occasion to point out that the said

properties in CS no. 21 are self-acquired. No objection therefore was

raised against the claim that the properties in CS no. 21 are joint

properties. The said claim has been raised for the first time by way of

the second partition suit. The present suit thus falls outside the scope

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of the said first situation. No evidence was led by the parties that CS-

21 was consciously or mistakenly left out of the scope of the first suit.

36. The second situation is that when certain joint properties forming

subject matter of the first partition suit have been excluded from its

purview with the consent of the parties and the parties agree to remain

in joint possession thereof, a second partition suit would be

maintainable.

37. The present suit equally falls outside the scope of the said second

exception in view of the fact that CS no. 21 was never made the subject

matter of the first partition suit. The parties thus had no occasion to

jointly agree to exclude the properties comprised in CS no. 21.

38. The third situation is when the Court has refused to partition

certain joint properties, a subsequent suit seeking partition of the same

properties will not be maintainable. A suit however seeking

implementation of the decree passed in the first suit will be

maintainable.

39. The third situation covers the present suit. The said Bakshi Tarn

and Telai Tarn have not been partitioned in the first suit. The benefits

arising therefrom were directed to be divided between the parties. The

present partition suit to the extent it seeks implementation of the

distribution of the usufructs arising from Bakshi Tarn and Telai Tarn

and the ascertainment of the shares of the persons, who have become

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entitled thereto due to inheritance or transfer thereof, is maintainable.

It is also alleged that since no final decree was passed in the earlier

suit, no formal partition was effected in respect of CS 23. The present

suit would also be maintainable in respect of the unpartitioned

portions of CS 23

40. Applying the dicta in the Sashi Mohan decision (supra), the

plaintiff was required to firstly plead in the plaint that the properties

under CS Khatian No. 21 were either by consent or deliberately left out

from the scope of TS No. 184 of 1926. In addition to the said pleading,

the plaintiff/respondent was required to lead evidence indicating that

the parties either jointly agreed to leave out the said properties out of

the scope of TS No. 184 of 1926 or had done so erroneously. The plaint

in the present suit contains no such averment. There is no oral or

documentary evidence led by the plaintiff to the aforesaid effect.

41. It would therefore follow that the predecessor-in-interest of the

parties to the instant suit in TS No. 184 of 1926 had proceeded on the

basis that CS Khatian No. 23 comprising about over 70 acres of land

was the only property of Dhanu Gope and hence only sought partition

of the said CS Khatian No. 23 in the first suit. The descendants are

bound by the previous conduct of their predecessor in interest. Section

11 of the CPC needs to be appreciated in this regard:-

Section 11 Res judicata.

No Court shall try any suit or issue in which the matter directly and

substantially in issue has been directly and substantially in issue in

a former suit between the same parties, or between parties under

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whom they or any of them claim, litigating under the same title,

in a Court competent to try such subsequent suit or the suit in

which such issue has been subsequently raised, and has been heard

and finally decided by such Court.

Explanation IV.-- Any matter which might and ought to have

been made ground of defence or attack in such former suit

shall be deemed to have been a matter directly and

substantially in issue in such suit.

Emphasis applied

42. A claim by a descendant to the property of his/her deceased

ancestor is indeed a claim raised under the head and title of the latter.

Therefore, any previous omission or concession made by the ancestor

in a judicial proceeding would bind his descendant. The conduct of the

parties to the first partition suit in leaving out the properties in CS no.

21 thereby prevents the parties to the second partition suit to raise the

claim that said properties are joint properties.

43. In addition to above, it could also be inferred that the properties

under CS Khatian No. 21 were understood and accepted as properties

acquired by Bholu Gope exclusively and hence were not made part of

the subject matter of TS No. 184 of 1926.

44. The decision of Koley & Ors. vs. Deputy Director of

Consolidation & Ors. reported in (1976) 3 SCC 119 particularly

paragraph nos. 9,3,5,36 and 46 thereof and the decision of

Ranganayekamma & Anr. Vs. KS Pravash reported in (2008) 16 SCC

particularly para 29 and 46 thereof relied upon by Mr. Mahato to argue

that consent decrees amongst family members and family settlements

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ought not to be lightly distributed by Courts does have some manner of

application in the facts of the case.

45. Having regard to the aforesaid discussions, this Court is of the view

that the impugned preliminary decree dated 19

th December, 1994 to that

extent that it include 5.25 acres under CS Khatian No. 21 is erroneous

and must be set aside and is hereby set aside.

46. The Trial Judge shall proceed to decide the actual successor in

interest of Late Dhanu Gope who are entitled to any part or portion of the

aforesaid Bakshi Tarn and Telai Tarn, and the unpartitioned portions

comprised in CS Khaitan no. 23, which has been subsequently divided

into RS Khatian No. 298 and RS Khatian No. 48.

47. For the aforesaid purpose, the parties shall at liberty to adduce

evidence or take steps to bring on record the actual beneficiaries and

shareholders and/or successors in interest amongst the plaintiff and

defendant or third party transferees.

48. For that purpose, the Trial Court shall proceed to pronounce upon

the shares of such persons afresh. Further steps will be taken by the Trial

Court after determination of the actual co-sharers in the aforesaid two

properties under original CS Khatian No. 23 only to the extent of the

aforesaid Bakshi Bandh Tarn and Telai Tarn.

49. The impugned judgment and decree is therefore set aside. All

connected applications shall stand disposed off in terms of this

judgement.

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50. There shall be no order as to costs.

51. All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

(Rajasekhar Mantha, J.)

I agree.

(Rai Chattopadyay, J.)