Calcutta High Court (Appellete Side)
Subir Mondal And Another vs Adhir Mondal And Others on 19 June, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. No.306 of 2009
Subir Mondal and Another
Versus
Adhir Mondal and others
For the appellants: Mr. S. P. Roychowdhury
Mr. Sandip Das
For the respondent No.1: Mr. Sudhish Dasgupta
Mr. Sibasish Ghosh Mr. Pranab Mitra For the respondent No.8: Mr. Manoj Kumar Ghosh Judgment on: June 19, 2012 Tarun Kumar Gupta, J.:-
Plaintiffs are the appellants against this judgment of affirmation. The plaintiffs filed a suit for partition being Title Suit No.26 of 2003 with the following averments:-
Harisadhan Mondal, a common ancestor of the plaintiffs and defendant Nos. 1- 5, was the owner of 'A' schedule property. Harisadhan Mondal died intestate leaving behind his three sons namely Banshilal Mondal, Nanigopal alias Nanilal Mondal and Charu Chandra Mondal who became co-owners to the extent of 1/3rd share each in said property. The plaintiffs are the son and the daughter of Charu Chandra Mondal whereas the defendant Nos. 1 - 5 are the sons and the daughters of Banshilal Mondal. On death of Charu Chandra Mondal the plaintiffs became joint owners of 1/3rd share in 'A' schedule property and similarly after demise of Banshilal Mondal defendant Nos. 1 - 5 became joint owners of 1/3rd share to said 'A' schedule property. The 'B' schedule property was recorded in the name of Nanigopal alias Nanilal Mondal, uncle of both plaintiffs and defendant Nos. 1 -5. Nanigopal died issueless leaving behind his widow Kadambini Dassi. Kadambini Dassi accordingly inherited said properties of Nanigopal. Kadambini Dassi did not transfer any portion of said property to anybody. On her death the plaintiffs and defendant Nos. 1 - 5 each became entitled to 1/7th undivided share in 'B' schedule property. Plaintiffs and defendants Nos. 1 - 5 were accordingly in joint possession of the suit property. Defendant Nos. 6 - 15 were trying to intrude upon the suit property alleging that they purchased some portion of the same from defendant No.1. The deed of gift dated 27th June, 1962 purported to have been executed by Kadambini Dassi in favour of the defendant No.1 was a fraudulent document as the alleged L. T. I. of Kadambini Dassi appeared in said deed was not that of Kadambini Dassi. Defendant No.1 had no right to sell the suit properties to the outsiders and that his sale, if any, should be limited within his share. The judgment and decree passed in Title Suit No.47 of 1954 by the learned Sub-ordinate Judge, third Court at Alipore is not binding upon the plaintiffs as neither the plaintiffs nor their father Charu Chandra Mondal was a party to the suit. The alleged deed of conveyance dated 16th June, 1967 executed by Harendralal Sarkar is a fictitious document having no transferable right. The property as conveyed by said deed was a trust property which could not be transferred without the permission of the appropriate authority. As defendant Nos. 1 - 5 declined to make amicable partition of the suit property, the plaintiffs were compelled to file this suit for partition for declaring their 1/3rd share and 2/7th share in respect of the properties described in Schedule 'A' and ' B' respectively and for partition of the same. Defendants should be restrained by a decree of permanent injunction from transferring and / or for changing the nature and character of the suit property till final decree is passed.
Respondent defendant No.1 only contested the suit by filing a written statement denying material allegations of the plaint and contending inter alia as follows:-
The suit property never belonged to Harisadhan Mondal. 'A' Schedule property was the absolute property of the Nanigopal alias Nanilal Mondal and his name was correctly recorded in C. S. khatian No.90 C. S. Dag Nos.651 and 652. Harisadhan Mondal or his other sons had no right, title, interest or possession in the 'A' Schedule property at any point of time. The 'B' schedule property was recorded in the C. S. record of right in the name of Nanigopal Mondal. Harisadhan Mondal and his other sons had also no right, title, interest or possession in said 'B' schedule property. After the demise of Nanigopal alias Nanilal Mondal those properties devolved upon his widow Kadambini Dassi. Haisadhan Mondal's patta land of 12 cottahs taken from landlord Ishan Chandra Mondal on 11th July, 1916 at an annual rental of Rs.2 was found to be 29 decimals in actual measurement and said land was recorded in C. S. Khatian No.161, Dag No.613 as 'Bastu' land in the names of sons of Harisadhan Mondal. As said property comprised in Dag No.613 was not brought into hotchpotch of the suit, the suit was bad for partial partition. Kadambini Dassi after death of her husband Nanigopal alias Nanilal Mondal enjoyed the 'A' schedule property and 'B' schedule properties as well as her share in Dag No.613 being ancestral property of her husband and sold away certain portions of those properties to others. The remaining portion of the suit properties along with her share in Dag No.613 was transferred by Kadambini Dassi to the defendant No.1 by a registered deed of gift. Defendant No.1 accepted said deed of gift and also transferred some portions of the suit properties to different parties. During lifetime of Nanigopal alias Nanilal Mondal one Hirendralal Sarkar filed Title suit No.47 of 1964 in the Court of third Sub-ordinate Judge at Alipore against him for declaration of right, title and interest in respect of the lands in C.S. plot No.956, 960, 967, 951 and 804. Said suit was dismissed in the Trial Court. Hirendralal Mondal preferred an appeal. During pendency of said appeal Nanigopal alias Nanilal Mondal died and was substituted by his widow Kadambini Dassi. The Appellate Court allowed said appeal in part by declaring title of Hirendralal Sarkar in respect of those properties but recognized the tenancy right of Nanigopal Mondal and on his death his wife Kadambini Dassi and rejected the prayer for eviction of said tenant Nanilal Mondal and on his death Kadambini Dassi. Hirendralal Sarkar created a trust in respect of said property and other properties. However, the Appeal Court judgment created some anomalies as in the revenue records the name of Hirendralal was recorded as raiyat but that judgment of the Appellate Court declared the tenancy right of Kadambini Dasi being sole heir of Nanigopal. The purchasers of lands from said Kadambini Dassi when filed applications for mutation of their names with the office of J.L.R.O. their applications were rejected on the ground that said property stood in the name of Hirendra Lal Sarkar. These purchasers put pressure upon Kadambini Dassi as well as upon the defendant No.1 to make their title perfect so as to enable them to mutate their names in the revenue department. To resolve the problem this defendant by registered kobala dated 16th of August, 1967 purchased said 4.48 acres of land from Hirendralal Trust Estate and Ashoke Das for valuable consideration. Thereafter, this defendant again executed fresh kobalas in favour of all the purchasers. As plaintiffs had no right, title and interest or possession in any portion of either 'A' schedule or 'B' schedule property they were not entitled to get any decree of partition and / or injunction.
No other defendant, however, contested said suit by filing any written statement.
On the basis of the pleadings of the parties several issues were framed including issues as to whether plaintiffs were entitled to get a preliminary decree of partition and also a decree of permanent injunction as prayed for. Both sides adduced oral as well as documentary evidence. On the basis of evidence on record learned Trial Court dismissed the suit by observing that the plaintiffs traced their co- ownership right to the 'A' schedule property through their predecessor-in-interest Harisadhan Mondal on the strength of a registered patta dated 11th July, 1916 whereby Ishhan Chandra Mondal settled 12 cottahs of land to Harisadhan Mondal at a rental of Rs.2/- per year but said patta land did not tally with the patta lands described in the record of rights relating to said 'A' schedule property. Said Court was of further opinion that said patta land of Harisadhan Mondal rather tallies with R. O. R relating to the Dag No.613 which was marked (Ext.E) in said case. Learned Trial Court further observed that as said land of Dag No.613 was not brought in the hotchpotch of this partition suit, the suit was also bad on that score.
Learned Lower Appellate Court concurred with the findings of learned Trial Court and dismissed the appeal.
This second appeal was heard on the following substantial questions of law:- (1) Whether the learned Courts below committed substantial error of law in dealing with the question of title of the plaintiffs without relayment of the land covered by the registered patta dated 11.07.1916.
(2) Whether the learned Courts below committed substantial error of law in failing to note that a record of right may not be substitute of a deed but is an evidence of possession.
(3) Whether learned Courts below committed substantial error of law in failing to consider that while a member of a family was living jointly the presumption is that any property standing in the name of one member of that family be treated as joint family property unless it was rebutted by cogent evidence led by the concerned member that the property was his self-acquired property.
(4) Whether the learned Courts below committed substantial error of law in not passing a part decree after holding that plot No.613 is identical with the patta land of Harisadhan Mondal which was executed on 11th July, 1916.
Mr. S. P. Roychowdhury, learned senior counsel for the appellants plaintiffs, assails the judgments of Lower Courts on the following grounds:-
(1) Plaintiffs and defendant Nos. 1 - 5's predecessor-in-interest Harisadhan Mondal got a patta dated 11th of July, 1916 whereby Ishan Chandra Mondal settled 12 cottahs of land to Harisadhan Mondal. At the relevant time the plot number was not available and so said land was described by boundaries.
(2) The land comprised in said patta was subsequently numbered as Dag No.651 and 652 during District settlement operation being 'A' schedule property.
(3) Learned Courts below failed to take note that 12 cottahs of land is equivalent to 21 decimals of land and that the area of land of patta squarely tallies with area of land of 'A' schedule property namely lands of Dag No. 651 and 652 comprising 21 decimals of land. (4) In case of establishing identity of patta land with 'A' schedule property relayment was necessary but learned Courts below did not take any step for relayment of said patta land with reference to 'A' schedule property land.
(5) Learned Courts below, on the other hand, relied on some documents of the defendant No.1 namely certified copy of sale deed in respect of plot No.613 measuring 29 decimals in favour of Kadambini Dassi and another (Ext.A) and the record of right relating to plot No.613 measuring 29 decimals (Ext.E) to opine that 1916 patta land of Harisadhan Mondal was recorded under plot No.613. (6) Plot No.613 is a non-suit plot and there was prayer for partition only in respect of 'A' and 'B' schedule properties wherein plot No.613 was not included. As such, learned Courts below gave undue stress to the documents relating to non-suit plot namely plot No.613 to come to a finding that said non-suit plot No.613 was the land of patta of 1916. (7) Learned Courts below also relied on judgment of a suit being Title Suit No.47 of 1954 and the judgment of appeal therefrom to exclude 'A' schedule property from the patta land of 1916 though admittedly neither plaintiffs nor their father Charu Chandra Mondal were a party to said Title suit or appeal arising therefrom. Learned Courts below dismissed the claim of the plaintiffs regarding partition relating to 'A' and 'B' schedule property on the basis of documents which were not at all relevant for the purpose of deciding the suit.
Mr. S. P. Roychowdhury finally submits that the case should be remanded back to the learned Trial Court for relayment of patta land of 1916 with reference to the 'A' schedule properties namely plot No.651 and 652 and for admitting additional evidence to that effect under Order 41 Rule 27 of the Code of Civil Procedure. In this connection Mr. Roychowdhury refers a case law reported in AIR 1963 Supreme Court page 1526 (K. Venkataramiah vs. A Seetharama Reddy and others) wherein it was held that under Rule 27 (1) of Order 41 of the Code of Civil Procedure, the Appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment", but also for "any other substantial cause". It was further held that there may well be cases where even though the court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner, and that such a case will be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of Rule 41 of the Code.
Mr. Sudhish Dasgupta, learned senior counsel for the contesting respondent No.1, on the other hand, submits that learned Courts below marshaled the evidence on record, both oral and documentary, meticulously and came to concurrent findings of fact that 'A' schedule properties namely C. S. plot No.651 and 652 under C. S. Khatian No.90 measuring 21 decimals was not the land covered by patta of 1916 granted to Ishan Chandra Mondal in favour of Harisadhan Mondal, common ancestor of the plaintiffs and defendant Nos. 1 - 5 and that rather the notings in the record of right relating to plot No.613 recorded in Khatian No.161 P. S. Tallygunj, Mouza Rajpur tallies with patta land of 1916. He further submits that identification of the lands covered by patta dated 11th July, 1916 with 'A' schedule properties is a question of fact and that no substantial question of law was really involved in this matter. He further submits that Ex.1 is a patta dated 11th of July 1916 showing settlement of 12 cottahs of land to Harisadhan Mondal and that it covered residential units of Subir Mondal and Adhir Mondal as per recitals of the deed. He further submits that Harisadhan Mondal died leaving three sons namely Banshilal Mondal, the father of defendant Nos. 1 - 5, Charuchandra Mondal, the father of present plaintiffs and one Nanigopal Mondal who died in 1960 issueless leaving his wife Kadambini Dassi. He further submits that Ishan Chandra Mondal died leaving Satish Chandra Mondal and Haripada Mondal. According to him, the record of rights of 'A' schedule property which was marked as Ext.2 shows that the same was settled by Nandalal Roy Chowdhury and others in favour of Nanilal alias Nanigopal, son of Harisadhan Mondal on the strength of a patta of 04.04.1918. According to him, the concurrent findings of fact of learned Courts below that 'A' schedule property was not the property of patta of 1916 which was issued by Ishan Chandra Mondal in favour Harisadhan Mondal were based on evidence, and hence, no interference is called for during hearing of the second appeal. He further submits that learned Courts below on the basis of other evidence on record namely C. S. record of right relating to C. S. Plot No.613 (Ext.E) wherein the names of sons of Harisadhan Mondal as tenants under Satish Chandra Mondal and others on the strength of a registered patta dated 11th July, 1916 came to concurrent findings that C. S. plot No.613 was the land of patta dated 11th July, 1916. According to him, as there were overwhelming documents to establish that 'A' schedule property was not the patta land of the patta dated 11.07.1916, there was no question of relayment of said land of patta of 1916 with reference to 'A' schedule properties. Mr. Dasgupta further submits that during trial contesting defendant No.1 pressed overwhelming documentary evidence mostly old and pre-suit documents to show that 'A' schedule and the 'B' schedule properties were the properties of Nanigopal who died issueless in 1960 leaving his wife Kadambini as his sole heir and that Kadambini gifted those properties to the defendant No.1 through a registered deed of gift dated 27th June, 1962 and that since then defendant No.1 being absolute owner of both 'A' and 'B' schedule properties was exercising rights thereupon.
In this connection Mr. Dasgupta has referred case laws reported in (2001) 3 SCC page 179 (Santosh Hazari vs. Purushottam Tiwari), (2008) 11 SCC page 586 (Mahaboob vs. Maktumsab), (2008) 12 SCC page 181 (Mahant Dooj Dass vs. Udasin Panchayati Bara Akhara and another) (2010) 13 SCC page 216 (Muncipal Committee vs. Punjab State Electricity Board and others) to impress upon this Court that as both the Courts below came to concurrent findings of fact based on evidence then there is no scope of interference under Section 100 of the Code of Civil Procedure particularly when tallying the patta land with the land of 'A' schedule property is a question of fact. According to him, practically no substantial question of law is really involved in this appeal and at this stage there is no scope of passing any order of remand for relayment of land of patta of 1916 with reference to 'A' schedule property.
Admittedly, Harisadhan Mondal had four sons namely Banshilal Mondal, Nanigopal Mondal, Pashupati Mondal and Charuchandra Mondal. Pashupati Mondal died issueless during lifetime of his father Harisadhan Mondal and Pashupati's wife also predeceased him. Plaintiffs are the son and the daughter of Charuchandra Mondal who died in 1963. Original defendant Nos. 1 - 5 were the sons and daughters of Banshilal Mondal (since deceased). Nanigopal alias Nanilal Mondal died issueless on 13th May, 1960 leaving his wife Smt. Kadambini who also died in 1983.
The plaintiffs traced their title to 'A' schedule property on the strength of one registered patta dated 11th July, 1916 whereby Ishan Chandra Mondal settled "more or less" 12 cottahs of land to Harisadhan Mondal, the common ancestor of the plaintiffs and defendant Nos. 1 - 5 (stress supplied). It was plaintiffs' specific case that said land of patta dated 11th July, 1916 was subsequently numbered as plot Nos. 651 and 652 being 'A' schedule property. It was vehemently denied by the defendant No.1 Adhir Mondal being the sole contesting defendant. The record of right of 'A' schedule was marked as Ext.2 and said patta of 1960 was marked as Ext.1. It came out from the record of right of 'A' schedule property (Ext.2) that the name of the landlords therein was noted as Nandalal Roy Chowdhury and others and the name of tenant was noted as Nanilal alias Nanigopal Mondal, son of Harisadhan Mondal on the strength of a patta dated 04.04.1918. It appears that the name of the landlords, the name of the tenant, the date of patta and the rate of the rent as appeared in said record of right relating to 'A' schedule property (Ext.2) did not tally with the corresponding data of the patta of 1916 issued by Ishan Chandra Mondal in favour of Harisadhan Mondal. It is true that record of right neither creates nor extinguishes title but the entries in the record of rights have presumptive value of correctness so long the same is not rebutted by any cogent evidence. The plaintiffs as it appears from the case record miserably failed to establish that said entries in the record of right relating to 'A' schedule property (Ext.2) were erroneous. In this connection it is also pertinent to note that said patta dated 1916 in favour of Harisadhan Mondal related to "more or less" 12 cottahs of land and not exactly 12 cottahs of land. It is true that 12 cottahs of land corresponds to 21 decimals of land but as per measurement of the land given in the patta it amounts to more or less 21 decimals of land. So, it cannot be said with any certainty that said patta land was really 21 decimals of land and nothing more or nothing less when it was specifically stated therein that the same was "more or less" 12 cottahs. During evidence the record of right relating to plot No.613 (Ext.E) was filed by defendant No.1 to show that names of the sons of Charu Chandra Mondal who issued the patta of 1916 in favour of Harisadhan Mondal was noted therein as landlords and the names of the sons of Harisadhan Mondal were noted as tenants having same amount of rent payable as mentioned in the patta though the area was recorded as 29 decimals. Accordingly, learned Courts below were of the opinion that the patta land dated 11th July, 1916 executed by Ishan Chandra Mondal in favour of Harisadhan Mondal was recorded in plot No.613 (Ext.E).
I find no prima facie infirmity in said findings of facts of learned Courts below. Learned Courts below also came to concurrent findings of fact that Kadambini Dassi inherited both 'A' and 'B' schedule properties on the death of her husband Nanigopal alias Nanilal Mondal and gifted the same to defendant No.1 Adhir Mondal through a registered deed of gift (Ext.B) dated 27th June, 1962 and that the same was acted upon and that plaintiffs failed to prove that it was vitiated by fraud. It appears that during trial contesting defendant No.1 filed huge documents, all of which were old and pre-suit dated to show that a portion of 'B' schedule property namely R. S. Khatian No.536 (Ext.E/3) was recorded in the name of Hirendra Lal Sarkar Trust Estate and the status of Nanilal Mondal was described therein as "Jhor Dakhalkar" and Hirendra Lal Sarkar instituted Title Suit being Title Suit No.47 of 1954 which was followed by an appeal (Ext.M and L) wherein it was declared that though said Trust Estate had title to the properties but defendant Nanigopal Mondal and on his death his wife Kadambini had tenancy right in said lands and that tenancy right of Kadambini Dasi was also recognized by revenue authorities as per order of J. L. R. O. in Case No.55/XIII of 1976-77 (Ext.D). It is true that the plaintiffs were not parties to those Court cases or to the proceeding before J. L. R. O. but those are old pre-suit documents supporting the claim of title of Kadambini Dasi through whom both the plaintiffs and the defendant No.1 were claiming their right in respect of 'B' schedule properties. Learned Courts below also took note of these old documents and came to concurrent findings of fact that "A' schedule property was not related in any way to the land of patta dated 11th July, 1916 granted by Ishan Chandra Mondal in favour of Harisadhan Mondal and that "A" and "B" schedule properties were the properties of Nanigopal alias Nanilal Mondal and that on the death of Nanigopal alias Nanilal the same devolved upon his wife Kadambini Dassi who later on gifted the same to the contesting defendant No.1 Adhir Mondal through a deed of gift (Ext.B) and that said deed of gift was not vitiated by fraud. As those findings are based on evidence the same cannot be said to be perverse by any stretch of imagination. As the land covered by patta of 1916 was not found to be identical with schedule 'A' lands as described in R.O.R. the learned Courts below did not find it necessary for any relayment and I find no infirmity in this regard.
During hearing of this second appeal it was not raised at any point of time that the property standing in the name of Nanigopal alias Nanilal Mondal should have been considered as joint family property. No such case was also made out in the Lower Court. This was also against averments of the plaint wherein it was categorically stated that 'B' schedule property was the personal property of Nanigopal alias Nanilal Mondal and that on his death it devolved upon his wife Kadambini and that on her death it devolved upon plaintiffs and defendant Nos. 1 - 5 in equal shares. Had it been the case of the plaintiffs that the property standing in the name of Nanigopal alias Nanilal were also joint properties then those averments would not have been in the plaint.
It is true that learned Courts below were of the opinion that the C. S. plot No.613 was the patta land of Harisadhan Mondal acquired through patta dated 11th July, 1916. But it was a non-suit plot. The plaintiffs did not admit said C. S. plot No.613 as the land covered by patta dated 11th July, 1916. There is also no prayer during hearing of the second appeal that plaintiffs want partition relating to said plot No.613 or that plaintiffs were facing any difficulty in joint possession of said C. S. plot No.613 with the defendants' requiring partition. As such, there was no question of passing any part decree of partition holding that plot No.613 is identical with the land covered by the patta of 1916. In the case in hand, the evidence on record is overwhelming to come to a definite conclusion that the land covered by patta of 1916 was not identical with 'A' schedule land and as such there is no question of passing of any order of remand for relayment of patta land with reference to 'A' schedule property.
Accordingly, I do not find any merit in this appeal and the same is hereby dismissed on contest.
However, I pass no order as to costs.
Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest.
Urgent photstat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)