Calcutta High Court
Tarumoni Mondal And Ors. vs Prafulla Kumar Mondal And Ors. on 5 May, 2006
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. These two appeals were heard analogously as those have been perferred against a common judgment dated 31st August, 1987 passed by the Assistant District Judge, 7th Court, Alipore, District - 24 Parganas by disposing of two suits being Title Suit No. 7 of 1976 and Title Suit No. 83 of 1978 which were heard analogously.
2. The Title Suit No. 7 of 1976 was filed by one Prafulla Kumar Mondal and Smt. Kalamani Mondal against Ganesh Chandra Mondal and others thereby claiming partition of their half share in the suit property on the allegation that their predecessor-in-interest, namely, Upendranath Mondal and his brother, viz. Ganesh Chandra Mondal jointly purchased the property described in the schedule to the plaint from the then Zamindars for valuable consideration of Rs. 300A under a registered sale-deed executed on 2nd November, 1929 and thereby those two brothers jointly became absolute owners of the suit property in equal share and were in joint possession of the same by constructing structure and sheds thereon and enjoying usufructs therefrom. Upendranath Mondal, the predecessor-in-interest of the plaintiffs died in 1938 leaving the plaintiff No. 1, his only son, then aged three years and the plaintiff No. 2, his widow. After the death of said Upendranath Mondal, the plaintiffs had been living in joint mess with the defendant No. 1, the Karta of the joint family, till 1964 and thereafter they were separated by the defendant No. 1 and were living in separate mess. As the plaintiffs were feeling inconvenience in enjoying the property jointly, they asked the defendant No. 1 to amicably partition the property but the defendant No. 1 having turned down such prayer and having filed a separate suit for eviction by describing the plaintiffs as licensee, the suit for partition was filed.
3. The defence taken by the defendant in the written statement was that he purchased the property for valuable consideration exclusively by his own money in his name and in the name of his elder brother, viz. Upendranath Mondal from the then Zamindars by the deed dated 2nd November, 1929 and consequently, the said Upendranath Mondal was merely a name-lender and the defendant No. 1 was the real owner. It is further stated that Upendranath Mondal subsequently executed a sale-deed relinquishing his claim in favour of the defendant No. l and the said Upendranath Mondal purchased a separate plot from his sister, viz. Nirabala Dasi and was living there with his wife and the child by construction of a house. It is further alleged that after his death, the plaintiff No. 1 sold the entire property of Upendranath Mondal and went with his mother to reside in her paternal house at Raghunathpur. The further case of the defendant is that after purchase of the property, the defendant No. 1 mortgaged the same to the Zamindars and upon his failure to repay the mortgage-debt, he had to surrender the tenancy of the suit property to the Zamindars which was subsequently transferred to him by the Zamindars by execution of a patta in his favour. The further defence of the defendant was that in the year 1974, the plaintiff No. l requested the defendant No. 1 to allow him to stay temporarily for a period of two months in one room of the suit property for the purpose of effecting repair of his residential house at Raghunathpur and that the defendant No. 1 granted licence without any fees and the period of licence having expired and the plaintiffs not having vacated the room on the suit property, the defendant No. 1 had already filed a suit for eviction.
4. As indicated above, in the other suit for eviction, the defendant No. 1 has described the plaintiffs as his licensees on the allegation as made in the written statement of the partition suit.
5. Both the suits were heard analogously. At the time of hearing, two witnesses were examined on behalf of each of the parties and the learned Trial Judge by the judgment and decree impugned herein held that both the brothers, namely, Ganesh and Upendra acquired title to the property by execution of a registered deed of the year 1929 and thus, the plaintiff No. 1 was a co-sharer in the property along with his uncle, consequently, the suit for eviction filed by Ganesh, the uncle, was also dismissed.
6. Being dissatisfied, the heirs of the defendant have preferred these two appeals.
7. Mr Ghosh, the learned advocate appearing on behalf of the appellant in both these appeals vehemently contended before us that from the evidence on record the learned Court below ought to have accepted the case of Ganesh that although the property was acquired jointly in the name of himself and his elder brother, yet, he was the real owner. Mr Ghosh submits that the subsequent conduct of the parties make it abundantly clear that it was Ganesh who mortgaged the property to Zamindars and subsequently, fresh tenancy was granted in the name of Ganesh and after the Estates Acquisition Act came into force, the name of Ganesh alone was recorded in the Revisional record-of-rights. Mr. Ghosh, therefore, prays for accepting the case of his clients that Upendra was really a Benamdar.
8. Apart from the aforesaid question, Mr. Ghosh raises a pure question of law. According to Mr. Ghosh, even if it is assumed for the sake of argument that both Ganesh and Upendra were the joint owners of the property, they having purchased Zamindar's interest and such interest having been vested in the State by virtue of the West Bengal Estates Acquisition Act, 1953, the alleged co-sharership of the two brothers came to an end and subsequently, Ganesh alone having retained the property and having been accepted by the State as its sole tenant, the suit filed by the plaintiffs was not at all maintainable and it should be presumed that Prafulla not having retained his alleged share, the same had vested in State. He, therefore, prays for setting aside the judgment and decree passed by the Court below and for dismissal of the suit for partition and a decree in the suit for eviction.
9. Mr. Mukherjee, the learned advocate appearing on behalf of the respondents in these appeals has opposed the aforesaid contentions of Mr. Ghosh and has contended that the learned Trial Judge rightly appreciated the evidence on record and came to the conclusion that there was no motive disclosed by Ganesh for adding his elder brother in the registered deed of the year 1929 as co-purchaser. Mr. Mukherjee submits that subsequent mortgage not having been established and even the alleged sale-deed by Upendra in favour of Ganesh was invalid as the same was unregistered. Moreover, the alleged thumb impression of Upendra on the said deed was not even proved. Mr. Mukherjee, therefore, prays for rejecting the submissions of Mr. Ghosh for accepting the plea of acquisition of 16 annas share in the name of Ganesh.
10. As regards the second branch of submission advanced by Mr. Ghosh, Mr Mukherjee contends that even if the original plaintiffs in the suit for partition did not retain their shares in the property after vesting, retention by one co-sharer should be treated to be retention on behalf of both. Mr. Mukherjee further contends that even if it is assumed for the sake of argument that the co-sharership of the two brothers extinguished on the date of vesting, for that reason, the right of retention of his clients has not been exterminated as formal possession from his clients or their predecessor has not been taken by the State in accordance with the provisions contained in the West Bengal Estates Acquisition Act. He, therefore, prays for maintaining the judgment and decree passed by the learned Trial Judge.
11. After hearing the learned Counsel for the parties and after going through the materials on record we find that admittedly by the deed executed in the year 1929, both the brothers apparently purchased the property from Zamindars. No reason has been assigned why unnecessarily Ganesh included his elder brother's name in the deed as co-purchasers when according to him he was the real owner. Moreover, if Upendra was really a name-lender, there was no occasion for Upendra to execute any alleged sale-deed in favour of Ganesh.
12. We have, however, already indicated that the said deed was an unregistered document. If the property was purchased in the year 1929 at the price of Rs. 300/-, the half share comes to Rs. 150/- even in 1929 and as such, subsequently, the same could not be sold by an unregistered document. Moreover, we have seen that the alleged thumb impression of Upendra in the said deed has not been proved in accordance with law and at the same time, after going through the original deed we are also not convinced about the genuineness of the said deed.
13. Be that as it may, by the said unregistered deed no title could be conveyed in favour of Ganesh. It is rightly pointed out by Mr. Mukherjee that even the stamp-paper was purchased not in the name of Ganesh but the same was purchased in the name of the sister of Ganesh and no explanation has been assigned by Ganesh as to why the stamp-paper was purchased in the name of their sister. We, thus, find no substance in the first contention of Mr. Ghosh that the property was the self-acquired property of Ganesh and Upendra was merely a name-lender or that he subsequently, sold away his right in favour of Ganesh. Similarly, the story of creating mortgage to the Zamindar and subsequent, grant of tenancy in his favour has not been substantiated through production of any cogent evidence and the learned Trial Judge correctly disbelieved such plea of Ganesh. It is rightly pointed out that in the absence of any decree of a Court for sale of the mortgaged property, there was no scope of surrendering the property in favour of the mortgagee except by way of transfer in accordance with the provisions contained in the Transfer of Property Act and at the same time the alleged subsequent patta in favour of Ganesh by accepting a yearly rent of Rs. 3/- created no valid lease unless the said document was a registered one.
14. We now propose to deal with the pure question of law raised by Mr. Ghosh.
15. For the purpose of deciding the aforesaid question, we shall proceed as if the property was purchased by the two brothers and that they were co-sharers. According to Mr. Ghosh, even if, they were co-sharers at one point of time, the moment the West Bengal Estates Acquisition Act came into force, such co-sharership came to an end and the entire interest of the parties vested in State subject to retention by the owners. Mr. Ghosh contends that admittedly heirs of Upendra did not retain the property but the property having been retained by Ganesh alone, Upendra's right in the property vested in State and in the absence of retention by his heirs, they cannot claim to have any interest in the property whatsoever. Mr. Ghosh contends that the State has recognized the retention of Ganesh and his name has been appearing in the R.S. record-of-rights as direct tenant under State. In such a situation, according to Mr. Ghosh, even the right of the heirs of Upendra as co-sharers vested in the State and therefore, the learned Trial Judge could not grant a preliminary decree declaring half share of Upendra's heirs in the property retained by Ganesh.
16. We have already indicated that according to Mr. Mukherjee, the learned Counsel for the respondents, the retention by Ganesh should be deemed to be one also on behalf of the heirs of Upendra and as such, it should be presumed that Ganesh retained the land for himself and also on behalf of the heirs of Upendra.
17. After going through the provisions contained in the West Bengal Estates Acquisition Act, we find that on the date of coming into operation of the West Bengal Estates Acquisition Act, the interest of Zamindar, which is that of intermediary vested in the State subject to retention. In the case before us, it is not the case of the respondents that they retained the land on the basis of their right as co-sharer and such being the position, their right in the property totally vested in the State.
18. We are of the view that after the decision of Full Bench of this Court in the case of Madan Mohan Ghosh and Ors. v. Sishu Bala Atta and Ors. there is no dispute with the proposition of law that the co-sharership of Ganesh and Upendra came to an end from the date of vesting and after the date of vesting, they cannot be said to be co-sharers according to law. If they were not co-owners after the date of vesting, we find no force in the contention of Mr. Mukherjee that retention by Ganesh was in reality also on behalf of his co-sharers when the co-sharership extinguished on the date of vesting.
19. Therefore, whatever was retained by Ganesh, the same was on his behalf alone and the heirs of Upendra cannot claim any right in the retained land of Ganesh when the law did not permit a co-sharer to retain the land on behalf of other co-sharer.
20. At this stage, Mr. Mukherjee strenuously contended before us that even if the concept of co-ownership abolished from the date of vesting, there was no time limit for exercising option for retention when the State has not formally taken possession from his clients and therefore, it cannot be said that the right of his client to retain their share has been altogether eradicated. Mr. Mukherjee in this connection relies upon a decision of the Apex Court in the case of State of West Bengal and Ors. v. Sulekha Pal Mr. Mukherjee further complains that the State in this case illegally permitted Ganesh to retain more land in excess of his share in the holding.
21. In our view, in the suit filed for partition, the plaintiffs not having made the State of West Bengal a party, cannot make any allegation against the State for permitting Ganesh to retain land in excess of his share and the question whether heirs of Upendra have still the right of retention cannot be decided in the absence of the State. We, therefore, do not propose to enter into those questions and we are of the view that the suit for partition was not maintainable in the absence of State as party defendant because without deciding the aforesaid questions now raised by Mr. Mukherjee, there was no scope of declaring half share of the heirs of Upendra in the suit property on the basis of joint purchase of the year 1929. Mr. Mukherjee also tried to impress upon us that unless the holding in question was part of agricultural holding there could not be any vesting of the homestead and as such, his clients' share did not vest in the State. In support of such contention, Mr. Mukherjee relied upon a decision of the Supreme Court in the case of Sasanka Sekhar Maity and Ors. v. Union of India and Ors. In the said case the Apex Court was considering the vires and the scope of vesting provided in the West Bengal Land Reforms Act and in that context observed that there cannot be any vesting unless the same is part of agricultural holding. In the case before us, we are concerned with the vesting as provided in the West Bengal Estates Acquisition Act and according to such provisions, even the homestead in non-agricultural holding vested in the State subject to retention. We, thus, find no force in the aforesaid contention of Mr Mukherjee.
22. We, therefore, find substance in the contention of Mr. Ghosh that the learned Trial Judge erred in law in passing a preliminary decree in the suit for partition filed by the heirs of Upendra without adjudicating the aforesaid question and those questions were not even raised by the plaintiffs in the partition suit and those cannot be adjudicated in the absence of State of West Bengal. We, therefore, uphold the contention of Mr. Ghosh that the suit for partition could not be decreed by the learned Trial Judge.
23. The next question is whether Ganesh was entitled to get a decree for eviction in the suit filed against the heirs of Upendra by describing them as licensee.
24. We have already pointed out that on the date of vesting, the concept co-ownership extinguished and after that, the heirs of Upendra ceased to be co-sharer of Ganesh. Thus, in the land allotted to Ganesh by the State as reflected in the record-of-rights, the heirs of Upendra had no right and such being the position, the status of heirs of Upendra in the land retained by Ganesh was that of trespassers, the moment the licence was revoked. It is now settled law that even if the actual induction as licensee is not proved, the moment the plaintiff establishes absolute title to the property and the defendant fails to establish his title in the property, the plaintiff is entitled to get a decree for eviction as a matter of course simply on the basis of his title. So long the retention of the excess land by Ganesh is not set aside by the State Government or by a competent Court and at the same time, the heirs of Upendra are permitted to retain the excess land retained by Ganesh, the status of heirs of Upendra in such land must be held to be that of trespassers after revocation of alleged licence and thus, Ganesh was entitled to get a decree for eviction of Prafulla, the son of Upendra on the basis of his own title recognised by the State as on the date of decree.
25. We, thus, dismiss the suit filed by the heirs of Upendra and decree the suit originally filed by Ganesh. We make it clear that we have not gone into the question whether the heirs of Upendra have still the right to retain the land earlier held by them as co-sharer of Ganesh because such question should be adjudicated only in the presence of the State and we refrain from making any comment on that question.
26. The two appeals are, thus, allowed. The judgment and decree passed by the learned Trial Judge are set aside. The suit for partition is dismissed as not maintainable in the absence of the State of West Bengal as party whereas the suit for eviction is decreed. The defendants in the suit for eviction are directed to vacate the property within three months from today.
27. In the facts and circumstances, there will be, however, no order as to costs.
Pravendu Narayan Sinha, J.
28. I agree.