Amiya Kumar Basu vs Pankaj Kr. Chakraborty & Ors.

on 6 November, 1998

Calcutta High Court

Amiya Kumar Basu vs Pankaj Kr. Chakraborty & Ors. on 6 November, 1998
Equivalent citations: (1999) 1 CALLT 480 HC
Author: T Chatterjee
Bench: T Chatterjee
JUDGMENT T. Chatterjee, J.

1. This application under Article 227 of the Constitution is directed against the order passed by a
Revisional Court by which an order of the first Court, allowing an application for addition of party in
a suit for partition and injunction, was set aside and the application for addition of party filed by the
petitioner was rejected. Feeling aggrieved by the order of the Revisional Court, this application
under Article 227 has been moved by the petitioner who made the application for addition of party
in the partition suit pending before the trial court.

2. Opposite parly No. 1, Shri PankaJ Kr. Chakraborly, has filed the aforesaid suit for partition and
injunction against the opposite parties Nos. 2 to 12 in the Second Court of the Assistant District
Judge at Alipore (South 24 Parganas). in the said partition suit, the petitioner filed an application
under Order 1, Rule 10 of the Code of Civil Procedure, upon the allegations that the presence of the
petitioner was necessary as he was an interested party in the outcome of the suit as an agreement for
sale was entered into by him and one Mr. K. Mohan Das with the opposite party Nos. 2 to 12 in
respect of the second floor flat proposed to be constructed in premises No, 16U. Dover Lane.
Calcutta-700029 at a consideration of Rs. 15,25,000/-out of which the petitioner had already paid a
sum of Rs. 13,95,001/- to the parties to the suit. The petitioner in his application under Order 1,
Rule 10 of the Code of Civil Procedure had also alleged that after the execution of the agreement for
sale the co-owners have filed the suit for partition to avoid the agreement and the petitioner was not
given delivery of possession of the fiat in question on the ground that a partition suit was pending
amongst the co-sharers of the suit premises and an order of injunction was granted by the court. The
plaintiff-opposite party No. 1, however, objected to the addition of the petitioner on the ground that
the petitioner being a stranger in the suit for partition was not entitled to be added as a parly
defendant in the suit. By an order dated llth of August. 1994 Ihe trial court allowed the applicalion of
the petitioner for addition of party ex parte and the expare and order of the trial court was set aside
in revision. it is the order of the Revisional Court which is now under challenge in this application
under Article 227 of the Constitution.

3. On behalf of the petitioner, Mr. Dasgupta firstly questioned the propriety of the order passed by
the Revisional Court on the ground that the Revisional Court had no Jurisdiction to entertain the
Revisional application against the order of the trial court allowing the application for addition as the
valuation of the suit was more than Rs. 60,000/- and. therefore, the revlslonal application ought to
have been filed by the opposite party No. 1 before this court. This submission was made by Mr-
Dasgupta, relying on different provisions of the Bengal, Agra, Assam Civil Court Act. Mr. Dasgupta
contended that as the revisional Jurisdiction is also a part of the appellate Jurisdiction and as an
appeal after the disposal of the suit shall lie to High Court, the District Court had no jurisdiction to
entertain the Revisional application as the valuation of the suit exceeded Rs. 60,000/ - in view of the
provisions of the Bengal Assam Civil Court Act. in order to show that the revisional Jurisdiction is

Indian Kanoon - http://indiankanoon.org/doc/1175088/ 1

 Amiya Kumar Basu vs Pankaj Kr. Chakraborty & Ors. on 6 November, 1998

also a part of the appellate jurisdiction, Mr. Dasgupta relied on a decision of the Supreme Court in
the case of Shankar Ram Chandra Abhyankarv. Krishnajit Dattatraya Bapat, . in this connection,
reliance was also made to a decision of the Privy Council (Nagendra Nath Dey v. Suresh Chandra
Dey). Mr. Dasgupta also contended that assuming that the petitioner participated before the
Revisional Court without raising any objection as to its jurisdiction to entertain the revlslonal
application against the order of the trial court, even then it must be held that the Revisional Court
could not entertain the revlslonal application against the order passed by the court of first Instance
by consent of the parties or by taking part in the revisional proceeding. in support of this contention,
Mr. Dasgupta relied on a Full Bench decision of this court reported in AIR 1946 Calcutta page 508
(Khetsidas Gangaram v. First Land Acquisition Collector, Calcutta). Reliance was also placed by Mr.
Dasgupta to a Supreme Court decision reported in AIR 1970 Supreme Court page 1062 (Balat
Chandra Hazra v. Shewdhari Jadav. Mr. Bhattacharjee appraring on behalf of the opposite party No.
1, however, contested the submissions of Mr. Dasgupta. According to Mr. Bhattacharjee, the
petitioner cannot be permitted to raise the question of jurisdiction for the first time in this petition
under Article 227 of the Constitution as it is now an admitted position that the petitioner without
raising any objection as to the entertatnabillty of the Revisional application by the Revisional Court
against the order passed by the trial court allowing the application for addition of party which was
filed by the petitioner in the trial court, participated in the revlslonal proceeding. Before I proceed
further, let me keep it on record that there cannot be any dispute that the Revlslonal jurisdiction of
the High Court is a part of its appellate jurisdiction. in the present case, I am only concerned with
the question whether the revisional power conferred on the District Court could be exercised by the
District Court in the facts of this case. in my view. Irrespective of valuation of the suit, a District
Court has been conferred with concurrent jurisdiction with the High Court to entertain a revlslonal
application under section 115A of the Code of Civil Procedure. Section 115A of the Code of Civil
Procedure is as under :--

District Court's powers of revision

1. A District Court may exercise all or any of the powers which may be exercised by the High Court
under section 115.

2. Where any proceeding by way of revision is commenced before a District Court in pursuance of
the provisions of sub-section 1, the provisions of section 115 shall, so far as may be, apply to such
proceeding and references in the said section to the High Court shall be construed as references to
the District Court.

3. Where any proceeding for revision is commenced before the District Court, the decision of the
District Court on such proceeding shall . be final and no further proceeding by way of revision shall
be entertained by the High Court or any other court.

4. If any application for revision has been made by any party either to the High Court under section
115 or to the District Court under this section, no further application by the same party shall be
entertained by the other of them.

Indian Kanoon - http://indiankanoon.org/doc/1175088/ 2

 Amiya Kumar Basu vs Pankaj Kr. Chakraborty & Ors. on 6 November, 1998

5. ..... Not necessary.

4. From a bare reading of the provisions made in section 115A of the Code of Civil Procedure the
following have emerged :--

The District Court may exercised all or any of the powers which may be exercised by the High Court
under section 115. From this sub-section, it is, therefore, clear that whatever revislonal power that
can be exercised by the High Court under section 115 of the Code of Civil Procedure, a District Court
may exercised all or any of such powers. For example, if a revisional application is moved in High
Court, whatever power that has been conferred on the High Court to revise an order of the trial court
shall also be conferred on the District Court, as if the District Court was exercising the power of the
High Court under section 115 of the Code of Civil Procedure. If any proceeding for revision is
commenced before the District Court, the decision of the District Court on such proceeding shall be
final and no further proceeding by way of revision shall be entertained by the High Court or any
other court. From a bare perusal of sub-sections 1, 2, 3 & 4 of section 115A of the Code of Civil
Procedure, it also emerges that the District Court has been conferred with power to revise an order
of the trial court irrespective of valuation. That is to say even if a suit is valued more than Rs.
60,000/- for the purpose of exercising power under section 115A of the Code of Civil Procedure the
question of valuation of the suit to entertain a revislonal application shall not arise at all in view of
conferment of revislonal power on the District Court by the legislature Irrespective of valuation.
Therefore, I can come to this conclusion that there cannot be any doubt that the District Court could
exercise its revislonal power under section 115A of the Code of Civil Procedure to entertain the
revislonal application against the order passed by the trial court allowing the application for
addition of party. That being the position, I am unable to agree with Mr. Dasgupta that in view of the
valuation of the suit, the revislonal application Instead of filing before the District Court ought to
have been filed by the opposite party No. 1 before this court. Accordingly I do not find any reason to
hold that the Revislonal Court had acted illegally and without any Jurisdiction in entertaining the
revlslonal application in exercise of its power under section 115A of the Code of Civil Procedure in
view of my finding made herein above to the effect that the District Court had the Jurisdiction to
entertain the revislonal application irrespective of valuation under section 115A of the Code of Civil
Procedure. in view of my conclusion made hereinabove, the other question raised by Mr. Dasgupta
that participation in the proceeding for revision by the petitioner did not confer any jurisdiction on
the District Court to entertain such a revislonal application, need not be gone into at all. But it may
be said at once that there cannot be any difficulty in holding that a court which lacks Jurisdiction to
entertain a particular proceeding cannot be conferred with Jurisdiction by consent of the parties or
by participating in the said proceeding. in this view of the matter, the decisions cited on the question
of conferment of jurisdiction by consent need not be gone into in this judgment. Accordingly, the
submission of Mr. Dasgupta relating to Jurisdiction of the Revislonal Court to entertain the
revlslonal application cannot be accepted and is, therefore, rejected.

5. It was next contended that the petitioner having paid Rs. 13,00,000/-and odd out of Rs.
15,00,000/- and odd'by entering into an agreement for sale in respect of a proposed second floor
flat-in premises No. 16U Dover Lane, Calcutta-700029 has acquired an interest in the
subject-matter of litigation and, therefore, his presence would be required for the purpose of

Indian Kanoon - http://indiankanoon.org/doc/1175088/ 3

 Amiya Kumar Basu vs Pankaj Kr. Chakraborty & Ors. on 6 November, 1998

deciding the real controversies raised in the suit for partition. in support of this contention, Mr.
Dasgupta relied on the celebrated decision of the Supreme Court of our country in the case of Rajta
Begam v. Anwar Begam AIR 1956 Supreme Court 886 and also on a Privy Council decision in the
case of Atma Ram v. Beril Prasad &. Ors.. AIR 1935 Privy Council 185.

6. This submission of Mr. Dasgupta was contested by Mr. Bhattacharjee, appearing on behalf of the
opposite party No. 1. Mr. Bhattacharjee. however, had drawn my attention to the fact that the
present suit for partition was filed by the opposite party No. 1 on 21st of May, 1987 and an order of
injunction was granted not to sell or transfer the suit property which was passed on 2nd of July,
1987. During the continuance of the said order of injunction and in violation of the same, the defend
ants-opposite party Nos. 2 to 12 entered into the agreement for sale with the petitioner on 8th of
August. 1987. Therefore, Mr. Bhattacharjee contended that in view of the fact that the agreement for
sale was entered in to after the order of injunction was granted in favour of the plaintiff-opposite
party No. 1. No reliance could be placed on such agreement for sale as the same was entered into in
violation of the court's order of Injunction. Accordingly, Mr. Bhattacharjee contended that no
Interest could be acquired by entering into the agreement for sale during the continuance of the
order of Injunction and, therefore, the petitioner could not acquire any legal Interest in the subject
matter of litigation and, therefore, his presence would not be required for deciding the real
controversies raised in the partition suit. Mr. Bhattacharjee also contended that assuming an
agreement for sale was not entered into in violation of the court's order of injunction, even then
simply by entering into an agreement for sale, no legal Interest could be acquired by the petitioner
in respect of the subject-matter of litigation. in support of this contention, Mr. Bhattacharjee made a
reference to the provisions of section 54 of the Transfer of Property Act and also relied on two
decisions one of which is reported in 59 Calcutta Weekly Notes 886 (Gobtnda. Chandra Ghosh v.
Prabhabatt Ghosh) and the other is the decision of the Supreme Court {Naryandas Karsonaas v. S.
A. Kamtam & another).

7. Relying on the principles of doctrine of its pendens as contemplated in section 52 of the Transfer
of Property Act, Mr. Bhattacharjee contended that even If the part of the suit property is transferred
to the petitioner even then such transfer shall be hit by the doc trine oflis pendens and accordingly
even if the petitioner acquires interest by way of transler, then also his presence would not be
required for deciding the present partition suit. After carefully considering the respective
submission of the learned counsel for the parties on the question indicated above, I am of the
opinion that the prayer of the petitioner for addition in the partition suit cannot be allowed. Section
52 of the Transfer of Property Act defines "sale". The last para of this section lays down the principle
of Indian Law that title in property can be transferred only by conveyance and not by mere
agreement between parties (See Raja Bhupendra v. Rajeshwar . Apart from that, last para of section
52 of the Transfer of Property Act clearly says that it does not, of itself, create any Interest in or
charge on such property. in Narayandas Karsonaas v. S. A. Kamtam arid another, , the Supreme
Court observed that a contract of sale in view of section 52 of the Transfer of Property Act does not,
of itself, create any interest in or charge on the property. The Supreme Court in paras 32 and 33 of
the said decision also observed that the personal obligation created by a contract of sale is described
in section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to
the ownership of property, but not amounting to an interest or easement therein. in a Bench

Indian Kanoon - http://indiankanoon.org/doc/1175088/ 4

 Amiya Kumar Basu vs Pankaj Kr. Chakraborty & Ors. on 6 November, 1998

decision of this court in the case of Gobinda Chandra Das v. Prabhabatt Ghosh, 59 Calcutta Weekly
Notes 886, it was held that a decree passed in a suit for specific performance of a contract for
reconveyance did not create any Interest in the immovable property. Following the aforesaid two
decisions and in view of last para of section 52 of the Transfer of Property Act, I am of the view that
by entering into an agreement for sale, the petitioner cannot acquire any legal Interest in the subject
matter of the litigation and that being the position, the petitioner not having acquired any legal
Interest in the subject matter of litigation would not be entitled to be added in the suit for partition.
in this connection, reliance can be placed to a decision of the Supreme Court in the case of New Red
Bank Tea Company Pvt Ltd. v. Kumkum Mittal, . in paragraph 11 of the aforesaid decision of the
Supreme Court, after relying on the earlier decision of the Supreme Court in the case of Razia
Begum v. Sahebzadi Anwar Begum, the Supreme Court observed as follows :--

"In the leading English case of Moserv. Marseen, Lindly L.-J. has held that a party who is not
directly interested in the issues between the plaintiff and the defendant but is only indirectly or
commercially affected cannot be added as a defendant because the court has no jurisdiction under
the relevant rule to bring him on record even as a proper party. The position is no different under
the Indian Law. As laid down by this court, in a suit relating to property in order that a person may
be added as a party, he should have a direct interest as distinguished from a commercial Interest in
the subject-matter of the litigation. (See : Rajta Begam v. Sahebzadi Anwar Begam) (in Ramesh
Hirachand Kundanmal v. Municipal Carpn. of Greater Bombay this court has held : SCC P 531, para
14) it cannot be said that the main object of the rule is to prevent multiplicity of actions though it
may incidentally have that effect ......

It is therefore, necessary that the person must be directly or legally interested in the action in the
answer, i.e. he can say that the litigation may lead to a result which will affect him legally that is by
curtailing his legal rights. it is difficult to say that the rule contemplates joining as a defendant a
person whose only object is to prosecute his own cause of action. "

8. Again the Supreme Court in Sarvinder Singh v. Dilip Singh & Ors., held that in view of the
principles of doctrine of lis pendens as embodied in section 52 of the Transfer of Property Act,
concerned party could not be considered to be either necessary or proper parties to the suit.
Therefore, in view of the aforesaid observations of the Supreme Court and relying on the principles
of the aforesaid two decisions of the Supreme Court, I am of the view that the Revisional Court was
fully Justified in rejecting the application for addition of parties filed by the petitioner in the present
suit for partition. in the instant case, in my view, the petitioner has no legal Interest in the
subject-matter of dispute raised in the partition suit. All that his claim is for enforcement of the
agreement for sale entered into by opposite parties Nos. 2 to 12 with the petitioner. As noted herein
earlier, this agreement was executed long after the institution of the suit for partition and after an
order of injunction was granted by the court. Moreover, the relief claimed by opposite party No. 1
against the opposite party Nos. 2 to 12 is simply the declaration of his respective shares in the suit
property and partition and separate possession. in the event, the opposite party Nos. 2 to 12 fail to
execute any deed in favour of the petitioner in accordance with the agreement for sale, it is then for
the petitioner to approach the court for a decree for specific performance of the agreement for sale.
Therefore, it cannot be said that the petitioner is directly Interested in the partition of the suit

Indian Kanoon - http://indiankanoon.org/doc/1175088/ 5

 Amiya Kumar Basu vs Pankaj Kr. Chakraborty & Ors. on 6 November, 1998

property between opposite party No. 1 and opposite party Nos. 2 to 12. I am, therefore, of the view
that the presence of the petitioner in the suit for partition would not be necessary for effectual and
complete adjudication of the controversies raised in the suit and on the other hand, the presence of
the petitioner in the suit for partition may cause prejudice to the parties on to the suit. For the
reasons aforesaid, I am, therefore, of the view that no Interference can be made in respect of the
order passed by a revlslonal court rejecting the application for addition of party. Mr. Dasgupta,
however, relied on two decisions of the Supreme Court one of which is (Anil Kr. Singh v. Shibnath
Mishra), and contended that as the petitioner has entered into an agreement for sale of the proposed
second floor flat of the premise in question at a consideration of Rs. 15.00.000/- and odd out of
which Rs. 13,00,000/- and odd has already been paid, the petitioner has acquired legal Interest in
the subject-matter of the litigation and. therefore, his presence would be necessary in order to
enable the court to effectually and completely adjudicate upon and settle all questions involved in
the suit. in my view, the facts of this case is totally different to that of the decisions cited above. in
that decision, the question was whether a person who has got his Interest in a property declared by
independent decree for specific performance of contract of sale of immovable property is a necessary
party or a proper party or not. in that decision, the Supreme Court held that in order to strike out
the name of a party improperly Joined or added a party, the condition precedent for allowing such
prayer is that the court must be satisfied with the presence of the party to be added, in order to
enable the court to effectually and completely adjudicate upon and settle all questions involved in
the suit. The Supreme Court further laid down the principle that the object of the rule is to bring on
record all the persons who are parties to the dispute relating to the subject-matter so that the
dispute may be determined in their presence at the same time without any protraction of
inconvenience and to multiplicity of a proceeding. What is the subject-matter of the present suit? in
the present suit, the plaintiffs have sought for partition of the joint family properties after
declaration of their respective shares in the same and for separate possession. If this is the
subject-matter of the litigation, it is difficult to understand how the presence of the petitioner who
has only entered into an agreement for sale of a Hat of the premises in question would be required
for deciding the aforesaid dispute raised in the aforesaid suit. Accordingly, from the aforesaid
decision of the Supreme Court, it is clear that the petitioner is neither a necessary party nor a proper
party to adjudicate upon the dispute arising in the partition suit so as to render an effective and
complete adjudication of the disputes involved in the partition suit. Accordingly, in my view, the
principles laid down by the Supreme Court in the aforesaid decision would be of no help to the
petitioner. But at the same time, if the principles laid down in the aforesaid decision are applied to
the facts of this case, there will be no doubt that the presence of the petitioner in the partition suit
would not be necessary in order to enable the court to effectually and completely adjudicate upon
and settle all questions Involved in the partition suit. So far as the other decision cited by Mr.
Dasgupta (Alljt Momonjf & Company v. Laljl Mavjt & Ors.) is concerned. I am still of the view that
the principles laid down in the aforesaid Supreme Court decision would not be of any help to the
petitioner. in that decision, it was held by the Supreme Court that a landlord whose building was
going to be demolished by the Municipal Corporation was a necessary party in the suit for perpetual
injunction filed at the Instance of the lessee of the said building. There cannot be any doubt that in
order to grant the decree for perpetual Injunction against the Municipal Corporation regarding the
demolition of a building the presence of the landlord would be necessary as the demolition order, if
it is passed by the Municipal Corporation, would certainly affect the legal Interest of the landlord. in

Indian Kanoon - http://indiankanoon.org/doc/1175088/ 6

 Amiya Kumar Basu vs Pankaj Kr. Chakraborty & Ors. on 6 November, 1998

the present case, I am only concerned whether a party who only entered into an agreement for sale
by paying part of the consideration money would acquire any legal Interest in the suit for partition
in which the court will only decide the shares of the parties and to effect partition according to their
respective possession in the suit property. The question regarding the agreement for sale entered
into by the petitioner with some of the co-owners of the suit property would not be germane in the
suit for partition. That being the position, I am unable to agree with Mr. Dasgupta that the said
decision would be applicable to the facts of this case. Before parting with this Judgment, the only
other decision that was relied on by Mr. Dasgupta may be dealt with now. This decision of the
Supreme Court is , Nagubt Ammal & Ors. v. B. Shama Rao & Ors. in view of my discussions made
herein above and in view of my conclusion that in a suit for partition, the petitioner who was
claiming interest by virtue of an agreement for sale is not entitled to be added in a suit for partition,
it is not necessary for me to deal with the principles laid down by the Supreme Court regarding the
applicability of the doctrine of lis pendens as contemplated in section 52 of the Transfer of Property
Act.

9. For the reasons aforesaid. I do not find any reason to Interfere with the order passed by the
Revlslonal Court rejecting the application for addition of parties. Accordingly, this application under
Article 227 of the Constitution is rejected. This order, however, shall not prevent the petitioner from
approaching any other court or forum in accordance with law on the basis of the agreement for sale
entered into by the petitioner and the opposite party Nos. 2 to 12 separately. There will be no order
as to costs. Let this order be communicated to the trial court at an early date.

10. Petition dismissed

Indian Kanoon - http://indiankanoon.org/doc/1175088/ 7