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Calcutta High Court
Faisal Parvez And Ors vs Bahar Begum And on 2 August, 2025
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OD-11
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
GA./20/2024
In
CS. No./2302/1948
FAISAL PARVEZ AND ORS. VERSUS BAHAR BEGUM AND
ANR.
Before:
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 2nd AUGUST, 2025.
Appearance
Ms. Iti Dutta, Adv.
...for the plaintiff no. 1.
Mr. Shyamal Chakraborty, Sr. Adv.
Mr. Manju Jaiswal, Adv.
Mr. A. M. Sabir, Adv.
...for the applicant.
The Court: This application is filed seeking the following reliefs:
a) To pass an orders of adding this Applicant herein as one of the party
Defendant no. 2 in this instant suit after deleting the name of the Original
Defendant no. 2 in the cause title of the plaint.
b) To substitute the name of this Applicant in place and instate of the Original
Defendant no. 2, as co-owner by purchase as Defendant no. 2, in the cause
plaint of this suit.
c) To pass such further order/orders as may be made and/or
direction/directions be given as think fit to this Hon'ble Court and may
deem fit and proper.
The contention of the applicant may be summed up thus:
1.
That from paper publication dated 30th August 2024 of Statesman
Newspaper the applicant came to know that a case is running in respect
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of the suit premises with regard to the share of Khatiza Bibi at Premises
No. 69. Rabindra Sarani P.S. Burrabarar Kolkata-700073.
2. The applicant upon making searches of the case through her Learned
Advocate came to know that the original plaintiff of the instant suit ie.
Becharam Sil and Yang Show Khee both since deceased had filed the
above mentioned suit for partition of premises No-69. Rabindra Sarani
P.S. Burrabazar Kolkata-700073 wherein one Khatiza Bibi was one of the
Shareholder/owner of the suit Premises.
3. By deed of Conveyance dated 12-11-1998 the abovenamed Khatiya Bibi
sold her undivided 1/18th entire share in the said Premises No. 69.
Rabindra Sarani P.S. Burrabazar Kolkata-700073, in favour of the
Applicant herein and her deceased husband and five other family
members.
4. Amongst the said family members of this applicant said Md: Shahid
Shamim transferred by way of Heba dated 11.05.2022 his share right
title interest and possession in respect of the suit premises in favour of
this Applicant herein.
5. The husband of the Applicant used to look after all the affairs of the
business and properties who has died on 17-06-2021.
6. After the aforesaid sell by the original Defendant no. 2 in favour of this
Applicant the said original Defendant no-2 lost all his right title interest
and possession and the same duly devolved upon the applicant her other
co-purchasers as aforesaid and accordingly this applicant became
interested beneficiary/co-sharer of the 1/18th share of the said suit
property as purchaser and thus may be substituted accordingly in place
of the name of the original Defendant no-2.
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7. The applicant being one of the purchasers of the share of Khatiza Bibi
the applicant may be substituted in place of Original Defendant
no.2/Khatiza Bibi.
The application is contested by filing Affidavit in opposition by plaintiff No. 1A.
Faisal Parvez. It is the contention of the plaintiff No-1A. that on or about 16th June
1950, a preliminary Decree for Partition was passed inter alia declaring the shares of
the Parties and one Mr. K.C. Mukherjee an Advocate of this Hon’ble Court was
appointed as the Commissioner of partition and Receiver to collect the rent issues
and profits over in respect of the said suit property. It is further contended that in
view of the subsequent deaths of the parties to the suit the deceased’s heirs and legal
representatives have to be brought on record without which the suit could not be
proceeded with. The Receiver has been in possession of the suit premises and has
been collecting rents from the tenants and giving maintenance to the parties. Some
parties have made applications in this suit from time to time for obtaining leave from
the Hon’ble Court to sell their respective undivided shares to the intending
purchasers and have obtained orders from this Hon’ble Court. It is also contended
since order dated 17th April 1987 passed by this Hon’ble Court Receiver is in Physical
Possession of the suit Premises.
The plaintiff no. 1A contends that upon making an application seeking
permission from this Hon’ble Court the plaintiff no. 1A has purchased the share of
the plaintiffs being allowed by different orders passed by this Court deed of
conveyance was executed and registered. Thereafter an application for amendment
and substitution being made and moved his name has been substituted as plaintiff
No. 1A.
It is contended that the applicant is guilty of suppression of material facts.
Although in the indenture it is mentioned about pending suit as such it is not correct
to say that the applicant came to know after searches were made as alleged. It is
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contended that the Indenture relied upon by the applicant is defective as there is no
mention in the Deed about the same is being executed through her power of Attorney
holder and there is no signature of Khatiza Bibi the defendant no-2 and there is no
mention about the Deed being executed through her power of Attorney holder and
the applicant should be called upon to produce the original registered Indenture
dated 12th November 1998. It is also contended that whenever an application was
moved copy was sent to defendant no-2 but was returned unserved. It is contended
that the applicant has not come with clean hands.
The applicant filed affidavit in reply denying the allegations made in the
Affidavit in opposition. It is contended that estate of defendant no-2 is remaining
unrepresented since long which has now been acquired by the applicant and 7 others
by purchase and if the application is not allowed estate of defendant no-2 will remain
unrepresented. The applicant has shown, the receipts issued by Khatiza Bibi.
Heard Learned Advocate for the Applicant and the Learned Advocate for the
plaintiff Perused the petition filed and the affidavits submitted.
Learned Advocate for the plaintiff submits that this application is not
maintainable and the alleged purchase by the applicant is not valid as no permission
was obtained from this Hon’ble Court to purchase the share of the Defendant no-2.
Learned Advocate also submits that the Indenture is defective as it does not mention
that it is executed through power of Attorney. Learned Advocate also submits that
the applicant failed to produce the Original Deed before the Receiver.
Learned Advocate for the applicant disputes the submission of the Learned
Advocate for the plaintiff and submits that in an application for addition of party the
validity of the purchase cannot be gone into at this stage. Learned Advocate relies
upon the following Judicial decision:
Savitri Devi VS District Judge Gorokhpur and others.
Reported in (1999) 2 SCC. P577.
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In the case of Savitri Devi (supra) the Hon’ble Supreme Court observed as
follows:
‘9. Order I Rule 10 CPC enables the court to add any person as a
party at any stage of the proceedings if the person whose presence
before the court is necessary in order to enable the court to effectively
and completely adjudicate upon and settle all the questions involved
in the suit. Avoidance of a multiplicity of proceedings is also one of
the objects of the said provision in the Code.
9. In Khemchand Shankar Choudhari V. Vishnu Hari Patil2 this Court
held that a transferee pendente lite of an interest in an immovable
property which is the subject-matter of a suit is a representative in
the interest of the party from whom he has acquired that interest and
has a right to be impleaded as a party to the proceedings. The Court
has taken note of the provisions of Section 52 of the Transfer of
Property Act, 1882 as well as the provisions of Rule 10 of Order XXII
CPC. The Court said : (SCC p.21, para 6)
“It may be that if he does not apply to be impleaded, he may suffer
by default on account of any order passed in the proceedings. But
if he applies to be impleaded as a party and to be heard, he has got
to be so impleaded and heard.”
10. In Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater
bombay3 this Court discussed the matter at length and held that
though the plaintiff is a “dominus litts” and not bound to sue every
possible adverse claimant in the same suit, the Court may at any
stage of the suit direct addition of parties and generally it is a matter
of judicial discretion which is to be exercised in view of the facts and
6circumstances of a particular case. The Court said : (SCC p. 529, para
8)
“8. The case really turns on the true construction of the rule in
particular the meaning of the words ‘whose presence before the court
may be necessary in order to enable the court effectually and
completely to adjudicate upon and settle all the questions involved in
the suit.’
The court is empowered to join a person whose presence is
necessary for the prescribed purpose and cannot under the rule direct
the addition of a person whose presence is not necessary for that
purpose. If the intervener has a cause of action against the plaintiff
relating to the subject-matter of the existing action, the court has
power to join the intervener so as to give effect to the primary object of
the order which is to avoid multiplicity of actions.”
The Court also observed that though prevention of actions cannot be said to be
main object of the Rule, it is a desirable consequence of the Rule. The test for
impleading parties prescribed in Razia Begum V. Sahebzadi Anwar Begum4 that the
person concerned must be having a direct interest in the action was reiterated by the
Bench.
It is well settled that in a suit for partition all parties have equal rights to get
their shares declared and partitioned by metes and bounds. Thus it is incumbent
upon the Court to see that all co-sharers are impleaded in the partition suit and the
estate of all co-sharers are represented. Hence for this purpose Court is empowered
under Order 1 Rule 10(2) to impleaded necessary or proper parties either upon
application or suo-moto. In the instant matter although no specific permission is
obtained from this Court by the applicant to purchase share of the co-sharer
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defendant no-2 but the fact there was no injunction restraining the co-sharers from
alienating the shares the question of validity of purchase will not be gone into at this
stage.
However as a stand is taken by the plaintiff No. 1A that the Original Copy of
the Sale Deed is required to be produced and the applicant failed to produce the
Original Deed before the Receiver and earlier notice sent to defendant no-2 returned
unserved as not claimed it is necessary to appoint a Special Officer to conduct an
Enquiry.
Learned Special Officer shall conduct Enquiry on the following aspects:
A. The Sale Deed relied upon by the applicant shall be produced before the
Learned Special Officer in Original who shall verify and compare the Deed
with that relied in the Petition. Such verification shall be made in presence
of the applicant and plaintiff No. 1A and their Learned Advocates.
B. The Money Receipt relied upon by the applicant in affidavit in reply
purported to be issued by Khatiza Bibi shall also be produced in Original
before Learned Special Officer who shall compare the same with the copy
filed in affidavit in reply. Such verification shall also be made in the
presence of the parties and their Learned Advocates.
C. Learned Special Officer shall visit the suit premises and ascertain as to
whether Khatiza Bibi is still residing there. Learned Special Officer shall
also ascertain whether the applicant is residing at the suit Premises.
The Enquiry should be conducted by Learned Special Officer upon notice to the
applicant, the plaintiff no-1A and their Learned Advocates. Copy of the Petition GA
No-20 of 2024, the Affidavit in opposition and Affidavit in Reply shall be served upon
the Learned Special Officer.
Upon Competition of Enquiry Learned Special Officer shall submit a report by
27/08/2025.
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Ms. Anima Chakraborty Learned Advocate Ph: 9830035587 and 9038132399
is appointed as a Special Officer.
Learned Special Officer is entitled to a remuneration of 500 G.M. Although in a
partition suit expenses are shared by the parties as per their share, but in the
instant case as the applicant is not yet made a party and it is his application on
which order is passed, the remuneration of Learned Special Officer shall be paid by
the applicant.
Fix 27/08/2025 for Report of the Special Officer.
(BISWAROOP CHOWDHURY, J.)
A.Bhar (P.A.).
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