Calcutta High Court
Smt. Katya Bala Dasi And Anr. vs Nilmoni Pakhira And Ors. on 2 May, 1986
Equivalent citations: AIR1987CAL248, AIR 1987 CALCUTTA 248, (1986) 2 CALLJ 1
JUDGMENT M.N. Roy, J.
1. This appeal from original decree, was directed against the judgment and decree dated 28th July 1973, as passed in Title Suit No. 50 of 1968 by Shri S. N. Ghose, the learned Subordinate Judge, 1st Court, Hooghly and whereby, the concerned Title Suit was decreed in a preliminary form on contest and it was declared that the plaintiff/respondents would have 8 annas share in 'Ka' Schedule properties of the plaint and they would also be entitled to get their shares partitioned by metes and bounds. The parties were further directed to effect an amicable partition by 31st Aug. 1973, failing which, it has been directed that a Partition Commissioner would be appointed by the Court, for effecting partition as per the share as mentioned above, upon an application made by either of the parties. The said Title Suit No. 50 of 1968 was heard analogously with Title Suit No. 50 of 1971 of the same Court and which was filed by the defendants Smt. Katya Bala Dasi and another and the subsequent suit was dismissed on contest.
2. The 'Ka' schedule properties as involved in Title Suit No. 50 of 1968 comprised of 1.55 decimal of land of different khatians in district Hooghly, P. S. Singur, appertaining to J. L. No. 60 of Mouza and village Mirzapur and Bankipore respectively and it would appear that they originally belonged to Abinash Chandra Das and the said Shri Das owned and possessed the land in question, on his own right and he died leaving his two sons, Panchanan Das and Sashi Bhusan Das as his heirs. The said Panchanan Das was the principal defendant No. 1 in the Title Suit under consideration and it has been stated that the said Panchanan Das and Sashi Bhusan Das jointly obtained in equal shares the properties as left by their father, Abinash Das and they also owned and possessed the properties in question jointly and in khas by virtue of their inheritance.
3. Sashi Bhusan Das died childless, leaving his wife Smt. Durgabala Dasi as the only heiress and it has been stated that the said Durgabala obtained 8 annas interest of Sashi Bhusan, by virtue of her inheritance, along with other properties and remained in enjoyment and possession of the properties in suit jointly with the said Panchanan Das, by paying rents, rates and taxes. It has been stated that the said Durga Bala Dasi in her turn, sold half share in the properties in suit, by virtue of a registered Deed of Sate (Ext. 1) as executed on 4th Jan. 1968 corresponding to 19th Pous, 1374 B. S. and registered on the next day i .e. 5th Jan. 1968, on a consideration of Rs. 10,000/-. in favour of the plaintiff/ respondents and became divesled of such of the said share of the properties and on the very same day, put the plaintiffs into possession and as such, they became the owners in possession in respect of the half share of her property and the plaintiffs have further stated that since then they were and are in enjoyment and possession of the said properties on acquisition of good title and on payment of rent. It was their case that they have also been enjoying and possessing the properties in suit by exercising their rights in all respects including accepting fruits, taking share of the fish of the doba and tank and enjoying them, apart from enjoying the trees and other usufructs.
4. The plaintiffs have stated that in the current Khatian No. 472, there has been no mention of the name of their vendor in the parcha and thus those records were erroneous. In any event, they have stated that the said 8 annas share of Durgabaia should have been shown in those records. It was their further case that in the recent Khatian Nos. 761 and 468, the words, "Sashi Bhusan had no possession by virtue of amicable partition" as mentioned, were erroneous and that too, as the lands in both the khatians were in possession of Sashibhusan and his wife, Durgabala all along. It has been alleged that Panchanan Das (defendant No, 1) taking recourse to fraud, had caused such wrong entries to be made and the present Khatian No. 1539 was also erroneous. It was also the case of the plaintiffs that in case of default in making partition by metes and bounds as asked for in respect of their shares in joint property, there would be many inconveniences, and for that, they had requested the defendant Panchanan Das many times orally, to have amicable partition, but he refused and neglected to accede to such request, and furthermore, created trouble and wanted to cloud the title of the plaintiffs, in respect of the share of fish and other usufructs of the lands in suit, with the help and assistance and aid of his followers and even those followers had assaulted the plaintiffs' men, whereupon, a Criminal case, as instituted, was continuing. In fact, it had been stated that Panchanan Das (defendant No. 1) has turned down the proposal for amicable partition for the last time on 1st February, 1968 and on such, the concerned suit was instituted on 9th May 1968, for partition by metes and bounds.
5. Along with Title Suit No. 50 of the 1968, Title Suit No. 50 of 1971, which incidentally was the defendants' suit, was heard and considered analogously, as common questions of law and facts were involved. In fact, the defendant Panchanan Das's written statement in Title Suit No. 50 of the 1968 was the plaint in Title Suit No, 50 of 1971, whereas the plaint of the plain tiffs in Title Suit No. 1968 was their written statement in Title Suit No. 50 of the 1971.
6. Katyabala Dasi and Bechubala Santra are the widow and daughter of Panchanan Das and they were impleaded in the concerned suit and they on being impleaded as such contended by filing an additional written statement that there was a previous partition between the parties during the life time of Sashibhusan and both of them got a partition of their ancestral properties, and, accordingly, they possessed their lands and, thereafter, Sashibhusan died and the widow Durgabala, made an oral sale of her lands in favour of Panchanan and she left the village and went to her father's house and therefrom, Panchanan was in exclusive possession of all the plots in suit and the plaintiffs had brought into existence the said fictitious Deed of Sale (Ext. 1) and in fact, they had not paid any consideration money to Durgabala. It was also contended, that the plaintiffs had no means to pay such consideration money and the R. S. record of rights, in respect of the plots in question, were prepared as per the respective possession of the parties.
7. On the basis of the materials as available and so also the pleadings, the following issues were framed in respect of the two suits :--
Title Suit No. 50 of 1968 :
1. Was there any previous partition?
2. Is the deed dated 4-1-68 in favour of the plaintiffs a collusive one? Have the plaintiffs acquired any interest by the Deed?
3. Are the plaintiffs entitled to get a decree prayed for?
Title Suit No. 50 of 1971 :
1. Is the suit maintainable in its present form and in law?
2. Is the suit barred by the principles of estoppel, waiver and acquiescence?
3. Is the suit bad for defect of parties?
4. Is the suit barred under Section 34 of the Specific Relief Act?
5. Is the suit barred under Section 10 of the C.P. Code?
6. Are the plaintiffs entitled to get a decree as prayed for?
7. To what relief, if any, are the plaintiffs entitled?
8. As indicated earlier, in Tide Suit No. 50 of 1971 Katyabala Dasi and Bechubala Santra were the plaintiffs and the Pakhiras, were the defendants in that suit the plaintiffs in this suit, have claimed 16 annas right, title and interest, apart from possession in the properties in suit and there case has been made out in terms of or in the light of the written statement in Title Suit No. 50 of 1968. Similarly, the Pakhira plaintiffs, who are defendants in the said Title Suit No. 50 of 1971, have also made out a case as per their averments in the plaint in Title Suit No. 50 of 1968.
9. In respect of the defendant/appellant suit, being Title Suit No. 50 of 1971, Issue No. 1 was answered holding that the suit as filed was maintainable and that too since Issues Nos. 2-5 of that suit were not pressed. Issue No. 6 of the suit as mentioned above, was whether the plaintiffs were entitled to get the decree as prayed for and that issue was taken up for consideration together with Issues Nos. 1 and 2 of Title Suit No. 50 of 1968. The fact that Panchanan Das and Sashi Bhusan Das were the former owners of the lands in suit and on Sashi Bhusan's death in 1938 as childless, his 8 annas interest devolved on Durgabala Dasi his widow. It is also not in dispute that Panchanan Das died during the pendency of the suit and as such his widow Katyabala Dasi and daughter Bechu Bala Santra were impleaded. On the basis of the legal evidence on record, the learned Court below has thus observed that there was or has been no dispute that Durgabala Dasi held 8 annas share and the rest 8 annas was held by Panchanan and on his death the same devolved on his heirs as mentioned above. We do not find any justification to interfere withsuch findings. On the basisof the findings as above, the learned Court below has also pointed out that thus the question for determination would be whether the sale by the Registered Deed (Ext. 1) and that too for the consideration of Rs. 10,000/- as mentioned hereinbefore, was valid in law. As indicated earlier, we also find that Sashibhusan's interest devolved on his widow Durgabala Dasi and such limited interest of Durgabala had devolved into an absolute interest after the passing of the Hindu Succession Act, 1956 and that too when, there was no suggestion or any evidence to establish that Sashibhusan's 8 annas interest devolved on somebody else. Thus we agree with the findings of the learned Court below that the plaintiff Pakhira had received due title in respect of the shares as indicated hereinbefore, in respect of the lands in suit, which previously belonged to Sashibhusan and thereafter devolved on Durgabala Dasi. In support of the findings as above, the learned Court below has also considered the facts and circumstances of the cases and has observed that since possession of Durgabala was proved, so the plaintiff Pakhira should also be held to be in possession of the lands in suit and as such, they would be entitled to claim the moiety share of those lands in suit, which originally belonged to Sashibhusan.
10. Mr. Banerjee appearing for the appellants claimed that in or about January 1968, the plaintiff Pakhira purchased 8 annas interest of Durgabala Dasi and since in or about 1938/39 she left her husband's place, she had lost all rights, title and interest of the properties and the learned Court below was not right, rather the same was wrong, in not holding such.
11. Since the value of the property in suit was more than Rs. 100/-, it was claimed before the learned Court below that such a transaction should have been done by a registered instrument under Section 54 of the Transfer of Property Act, as transfer of property valued at more than Rs. 100A could be made only by registered instrument. The learned Court below has observed that before him, no case was made by Katya Bala and Bechu Bala that there was an ouster of Durga Bala and consequently, no case of adverse possession was made out in their pleadings. It was also contended before the said Court, by the defendants that as no consideration money was given to Durga Bala Dasi, the concerned Ext. 1 should have been held to be a deed not duly executed. Such submissions have been overruled by the learned Court below, on consideration of the evidence as available and also because of the fact that he considered that stranger had no right or authority to challenge the payment of consideration money when the transferor Durga Bala (P. W.2) has herself admitted receipt of such consideration money and the transferee stated on oath about such payment.
12. While dealing with the question of exclusive possession of Panchanan in respect of the lands in suit, the learned Court below, after scanning the items of entries in the relevant Khatians or the land as involved in the respective suits, has observed that the story of previous partition, which was sought to be established by the defendants and more particularly their attempt to establish that Sashibhusan had no possession on the basis of such partition, could not be believed and in fact, the learned Court below has observed, that if such a partition as claimed was really there consequent on the oral sale between the parties, then the name of Sashibhusan would not have found place at all and if that was the state of affairs, then there was also no explanation about Durgabala's exclusive possession in respect of Plot No. 1152.
13. As indicated earlier, there is no doubt that Panchanan and Sashibhusan were the two brothers. It would also appear that Katya Bala claimed that those two brothers became separate in mess and in possession before Sashibhusan's marriage, which according to her, took place in the month of Falgoon (February/March) and thereafter Sashibhusan died in the month of Kartick (October/ November), at the age of 40 years. This story by Katyabala has not been believed by the learned Court below on the basis of the evidence of Durga Bala (P. W. 2) who has stated that her husband Sashibhusan was alive for 19/20 years after the marriage. Her evidence was preferred than the story of Katya Bala since the learned Court below has observed that Durga Bala being the wife, was the best person to say anything about her marriage or the death of her husband.
14. Thereafter, the learned Court below has taken up for consideration the fact, as to whether there was any partition of properties, as alleged to have been taken place between Panchanan and Sashibhusan. It was the case of Katyabala and her daughter that there was an amicable settlement between the parties about 40 years ago and to establish that, reliance was placed on the recitals of Ext. 1 and more particularly at page 3 of the same where there is a statement about an amicable partition between the brothers and they possessed some specific lands and had also ejmali lands. The learned Court below has observed that such recitals would not be conclusive proof of the fact of partition by metes and bounds and it has also been observed that a partition for convenience of possession by itself cannot stand in the way of a decree for partition, so long it is found that the same was in conformity with the share of the respective parties. Such determination was made on the basis of the determinations in the case of Jolfa Bibi v. Ajaluddin, 29 Cal WN 229 : (AIR 1925 Cal 425) which states that a partition for convenience of possession by itself cannot stand in the way of a decree for partition so long as it is not found that it was in conformity with the shares of the respective parties. Apart from the above, while on the point, reference was also made by the learned Court below to the case of Sarat Chandra Chattopadhay v. Ganda Charan Chakraborty, (1939) 43 Cal WN 181 where the views as expressed in the case of Jolfa Bibi v. Ajaluddin (supra), have been reiterated. It has also been indicated by the learned Court below that it would be apparent from the evidence of D.W. 1, Bakul that the properties as involved, were not valued and he was not in a position to say the year when the brothers had separated. That apart, the evidence of Sudhamoyee(D. W. 2) has also been considered and so also that of Katya Bala and Bechu Bala D. W. 3 and D. W. 4 respectively and on consideration of those evidence, the learned Court below has observed that thus, it cannot be held that there was previous partition by metes and bounds according to the respective shares of the parties and he was also of the view that the previous partition as alleged, was not proved.
15. The learned Court below has also observed that the Revisional Settlement record of rights (Ext. 3 series), in this case had not also proved that Sashibhusan and his wife Durga Bala were completely ousted from the land in suit. It has been recorded that even though those record of rights have some presumptive value, but such presumption of entries would relate, only to the entries recorded and authorised by the Act and the Rules framed thereunder and as such, the remarks made by the Revenue Officer concerned, that there was an amicable partition in the concerned record, were of little help and assistance. It was contended before the learned Court below that Sashibhusan had died about 40 years ago, but it has been commented by the learned Court below that even such fact was not recorded in the C.S. record of rights, which were prepared for the district of Hooghly in or about 1936. The record of rights Exts. 3(h) to 3(m), according to the learned Court below, would show that Panchanan and Sashibhusan had moiety share each and in the R.S. record of rights (Ext. 3 series) the Revenue Authorities made a number of erroneous and incorrect entries with regard to the possession, as exercised by the parties but one fact was clear that Durgabala was never ousted and there was no case for adverse possession against her. Considering the fact as mentioned above and so also the other evidence as available, the learned Court below has observed that possession of Durgabala was proved and as such, the plaintiff Pakhiras should also be held to be in possession of the lands in suit and so they would be entitled to claim the moiety share of the suit properties which as indicated earlier, belonged to Sashibhusan.
16. Mr. Banerjee, appearing in support of the appeal, contended that the learned Court below was wrong in holding that Durgabala had absolute interest in the suit properties after the introduction of the Hindu Succession Act, 1956, since she had lost all her title by adverse possession and the said Court was also wrong in holding, that the plaintiff Pakhiras had 8 annas share in respect of the suit properties. It was Mr. Banerjee's further contention that the observations by the learned Court below that there was no suggestion that Sashibhusan's 8 annas interest devolved on somebody and in any event, the said Court was absolutely wrong on deciding the question of such devolution of Sashi-bhusan's interest Mr. Banerjee further contended that the learned Court below erred in law and in the facts of this case, in interpreting Section 54 of the Transfer of Property Act and in particular the said Court ought to have hold that the sale by Durgabala was not valid and due and even if such sale was valid, the same could not destroy the defendant/ appellant's title as acquired by adverse possession. Mr. Banerjee also contended that the learned Court below should have held that the plea of ouster was necessary in the facts of this case when there was already a previous partition and the parties were not co-sharers and furthermore the findings of the learned Court below to the effect that consideration was brought to Durgabala, was entirely based on plaintiff's evidence and more particularly, ignoring the evidence as was adduced by the defendants.
17. Mr. Banerjee also contended that the Rule that a stranger cannot challenge the passing of consideration money between the transferor and the transferee was not applicable to a case of the present nature, where a case of acquisition of title by adverse possession was made out and the third party's title was affected and in any event, the learned Court below should have held, on the basis of the evidence as available that the remark column in the record of rights was wrong and since it appeared from the facts of the present case that different properties were recorded in the record of rights in exclusive possession of Panchanan and Durgabala, the learned Court below should have also held that the defendants succeeded in establishing their case of previous partition. It was Mr. Banerjee's further contention that the learned Court below was wrong in declaring 8 annas interest in respect of Item Nos. 16, 17, 18 to 22 in favour of the plaintiff Pakhiras, although he found that the properties were recorded as in exclusive possession of Panchanan Das. It was also the contention of Mr. Banerjee that the learned Court below was wrong in relying upon the uncorroborated evidence of Durgabala and in ignoring the evidence, as adduced by the defendants in the matter of making his determinations and the said Court was further wrong in not giving appropriate and due weight to the evidentiary value of the recitals in the Deed of Sale dated 4th Jan., 1968 (Ext. 1) which showed that there was a previous partition. In any event, it was contended by Mr. Banerjee that the findings of the learned Court below to the effect that there was no previous partition was improper and was contrary to the evidence on record and the said Court further failed to appreciate that the presumption attached to the record of rights, in this case, was amply rebutted by oral evidence and such being the position, the learned Court below was also not right in not duly considering or relying upon the remarks of the Revenue Officer in the concerned record of rights and in any event, the learned Court below also exceeded its jurisdiction, while making the observation since the entries as made by the Revenue Officer, were final.
18. We have indicated hereinbefore the broad spectrum of the challenges as thrown by Mr. Banerjee and we should further record that even in spite of such grounds, Mr. Banerjee really contended in this appeal that firstly, the learned Court below was not right in making its determinations without framing fresh issues in terms of the additional written statement which was filed by Katyabala Dasi and Bechu Bala Dasi on 19th December 1970 i.e. after the framing of the issues, which were on 2nd Dec., 1968. In fact, by that written statement the defendants as mentioned above, had accepted the written statement of Panchanan as filed earlier and in addition to that, they took the following exceptions :--
(1) Plaintiffs' complaint is not maintainable due to want of suitable Court-fees.
(2) Plaintiffs' complaint is untenable under Section 34 of the S.R. Act.
(3) These defendants from their predecessor-in-interest in succession have possessed the disputed property publicly, for long more than twelve years, within the knowledge of plaintiffs' predecessor-in-interest, denying his right, dispossessing him, with right adverse to him and in their own rights and thus they acquired good rights due to adverse possession. It was then and secondly, claimed by Mr. Banerjee that the dealing of the matters in issue, on the basis of the claim of adverse possession, was not right since this was not a case where such claim arose or in fact, appropriately pleaded. Then and thirdly, Mr. Banerjee contended that the sale as involved in this case, was not a sale in the strict sense of the term, but the same was merely a family arrangement and as such, the submissions as advanced on Section 54 of the Transfer of Property Act were of no avail or any assistance. It was fourthly and lastly, contended by Mr. Banerjee that in any event, the learned Court below should have held that in view of Section 57B, as incorporated by the West Bengal Estates Acquisition (2nd Amendment) Act, 1973 which came into force with effect from 12th July 1973, the learned Court below should have held that the suit in question, in view of its formulation and character had abated.
19. It was Mr. Banerjee's contention that the case of Jolfa Bibi v. Ajaluddin, (AIR 1925 Cal 425) (supra), as referred to and relied on by the learned Court, below was not appropriately applied in this case by the learned Court below. In that case there was some sort of partition which has not been found in this case. Thus we fail to understand how Mr. Banerjee would be justified in making his submissions as above or how we would be justified in accepting them. Thereafter, Mr. Banerjee claimed that since the case before us was not a case on adverse possession so the determinations in the case of Sarat Chandra Chattopadhya v. Ganga Charan Chakraborty, (1939 (43) Cal WN 181) (supra), would have no application. We also fail to appreciate such submissions of Mr. Banerjee in the facts of this case.
20. In support of his third submission as indicated hereinbefore, Mr. Banerjee firstly, referred to the case of Sahu Madho Das v. Mukanda Ram, . In that case it has been observed that the family arrangement between a widow and her daughters would be binding on the daughters, who were parties to it but not of their minor sons, who were not parties to the same, and who were not represented by their guardians. In that case it has further been observed that a family arrangement can, as a matter of law, be implied for the long course of dealing between the parties. The conduct of the various members of the family would be relevant to show that their acts, viewed as a whole, would suggest the existence of the family arrangement Thereafter, Mr. Banerjee relied on the decision in the case of S. Shanmugan Pillai v. K. Shanmugan Pilial, . While on the question of family arrangement under the Hindu Law it has been observed that although conflict of, legal claims in present or in future is generally a condition for the validity of family arrangements, it is not necessarily so. Even bona fide disputes present or possible which may not involve legal claims would be sufficient Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the Courts would more readily give assent to such an agreement than to avoid it On the basis of the ratio of the determinations as mentioned above and purporting to apply them in the facts of this case Mr. Banerjee claimed that even in spite of the Deed (Ext. 1), the same can be treated or should have been considered by the learned Court below as a family arrangement
21. While on the fourth point as indicated hereinbefore, Mr, Banerjee referred to the case of Ramkrishna Mullick v. State of West Bengal, (1975) 1 Cal LJ 154, where on the question as to whether the West Bengal Estates Acquisition (2nd Amendment) Act, 1973 is a piece of valid legislation, the Court has observed amongst others that the Amendment Act of 1973 and in particular Section 57B(1), (2), (3) and (4) which were sought to be inserted in the parent Act of 1953, were not ultra vires and it has been observed further that but in spite thereof, a suit will not be barred nor a suit will abate in the following circumstances : (A) It is open to any aggrieved party to file a suit, if it is found (i) that the determination of rent or of status of a tenant or incidence of tenancy relating to the Record of rights was made in violation of the principles of natural justice or by an authority having no jurisdiction to deal with such matters; that the matters coming under Section 57B(2)(a), (b) or (c) have been determined in breach of natural justice or by an authority not empowered or matters not coming within the mischief of Section 57B(2)(a), (b) and (c); where questions of title are involved in the suit; where matters involved in the suit (e.g. partition amongst co-sharers or intermediaries) or matters relating thereto, are beyond the scope of Section 57B(1) and (2); the suit will not abate automatically; interim orders already made in the suit will not stand vacated automatically unless the Court concerned comes to a finding that a particular suit comes within the mischief of Section 57B(2); The administrative order issued on behalf of the State Government directing its officers to take possession of land immediately on the view that a pending suit had abated, is invalid and without jurisdiction/ The respondents must apply before the appropriate Court and on such application, the Court will consider the scope of reliefs claimed in the suit and if the Court arrives at the finding that the suit comes within the mischief of Rule 57B( 1) and 2(a)(b) and (c), then and then only that suit will abate. In other words, if the Court finds in the suit pending before it that the subject-matters thereof do not come within the mischief of Section 57B or that the principles of natural justice have not been violated or that the authority concerned had acted without jurisdiction or that the determination in question was not real but self-styled then the suit will not be barred and the Civil Court will have jurisdiction to proceed with the suit in spite of Section 57B(2) of the Act. The Legislature has powers to take away the jurisdiction of Civil Courts in respect of any matter coming within the mischief of the West Bengal Estates Acquisition Act, when such matters can be decided by a Tribunal constituted under the Act. Here, this has actually been done by the provisions of Section 57B(1) of the Act. Section 57B(1) makes it clear that during the preparation of the Record of rights the suit must remain stayed and after the order is made, and the time for appeal expired, the suit will abate. If a party is aggrieved, he may file an appeal under Section 44(3). Although the Court's jurisdiction is taken away, the aggrieved party has been provided with an adequate alternative remedy under the Act If a tribunal is constituted under the Act, the Civil Court cannot have jurisdiction to deal with the same questions over again in a suit inasmuch as the suit itself has been specifically barred by the Legislature. It is, therefore, clear that the suit will be stayed under Section 57B(1) or will abate after a certain time and no Civil Court shall entertain any suit or application regarding determination of rent or of status of any tenant or of the incidents of any tenancy to which the Record of rights relates. But that does not mean that the jurisdiction of Civil Court is ousted. It is found that the validity of the section is challenged or of such matters or that the principles of natural justice have been violated, it does not came within the mischief of Section 57B(1). The provisions of Section 57B must be given full effect and Section 57B( 1) cannot be said to be ultra vires Article 14 or 19 of the Constitution of India. (F) The legislature is competent to bar the jurisdiction of Civil Courts and to establish statutory Tribunals for the purpose of deciding cases that come within the four corners of the statutes. (G) Article 31A of the Constitution applies in full force in respect of the Amending Act of 1973 also inasmuch as this is a law for acquisition of the estates or of the rights therein or the extinguishment or modification of any such rights of the persons. It appears therefrom that the amendment comes under the protection of Article 31A of the Constitution. (H) By exclusion of jurisdiction of Civil Courts in respect of matters coming within the four corners of the statute, the Legislature has not legislated in excess of its powers to enact.
That power is ancillary to the powers of enacting a law for acquisition of the extents by the State Government and by that process the Legislative provisions come within the protection of Article 31A, the challenge under Article 14 or 19 or 31 cannot be entertained.
22. From the facts of this case, it would appear that Abinash had two sons Panchanan and Sashibhusan each of whom inherited 8 annas equal share in the suit properties and after Sashibhusan's death, his wife Durgabala inherited his 8 annas share and thereafter, sold the same to the plaintiff Pakhiras on 4th Jan., 1968, for Rs. 10,000/-. It would also appear that on Panchanan's death Katyabala and their daughter inherited Panchanan's share and as such, they were impleaded as defendants. Mr. Roy Chowdhury specifically contended, on the facts and statements that would be indicated hereafter, that this appeal is not maintainable. He pointed out that in Title Suit No. 50 of 1968 Respondents in this appeal viz. Pakhiras were the plaintiff and defendant was Panchanan Das, who died on 18th Feb., 1970 and in the suit out of which the present appeal has been taken up Panchanan's heirs, Katyabala and their daughter were the plaintiffs. It is also an admitted fact that the two suits as mentioned above, were heard analogously and were disposed of and determined by one judgment. After placing the prayers in the concerned Title Suit No. 50 of 1971, Mr. Roy Chowdhury also pointed out that against the determinations as made therein, an appeal being F. A.T. No. 3742 of 1973 was presented. But since it was found that the said appeal was not maintainable here in this Court, the memo of appeal was taken back on 18th Jan., 1974 for presenting before the appropriate forum. But no such appeal, as pointed out by Mr. Roy Chowdhury has been preferred. In such circumstances Mr. Roy Chowdhury claimed and contended that this appeal would now be barred by res judicata or principles analogous thereto as the decision in Title Suit No. 50of 1971, has reached the finality.
23. In support of his submissions as above, Mr. Roy Chowdhury firstly, referred to the case of K. Kanda Swami Chattiar v. R. A. Murugesa Chattiar, . In that case the question in issue whether 'A' was trustee or 'B' was so in a suit by 'A' against 'B' and by 'B' against 'A' and the lis was decided by a common judgment by the learned Trial Court. By such determinations A's suit was decreed while B's suit was dismissed and separate decree in each suit was drawn up. There was an appeal taken by B, only against the decree passed in the suit filed by him and it has been held that an appeal was barred by res judicata as the decree in A's suit was not appealed against and since the findings in that suit had become final. Thereafter and secondly, Mr. Roy Chowdhury referred to the case of K. Khaja Mohideen v. K. Muhaideen Batcha, . In that case A filed a suit against B for permanent injunction restraining B from interfering with his running of tailoring business known as "Star Tailoring Mart". Claiming that the business exclusively belonged to him. B filed a cross-suit against A for possession of the "Star Tailoring Mart" claiming that he was owner of the business by right of inheritance from his father and A was only an erstwhile manager of the business. Both suits were tried jointly. The trial Court decreed the injunction suit of A and dismissed the cross-suit of B for possession. B filed an appeal only against the decree in the injunction suit. In such a case it has been held that the decree dismissing the suit for possession would operate as res judicata and bar the appeal against the decree in the injunction suit. The difference in the reliefs asked for in both the suits would not make any difference in the application of the rule of res judicata since, in both suits the question that was directly and substantially in issue, namely, the question of ownership was the same. Then and thirdly, Mr. Roy Chowdhury referred to the case of Sheodan Singh v. Daryao Kunwar, , where the Supreme Court has observed that it is the Court which decides the former suit whose jurisdiction to try the subsequent suit has to be considered and not the Court in which the former suit may have been filed, and in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaitniffs appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court-fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit, apart from holding that where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the , Court's decision stands confirmed, the decision of the appeal Court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and if that is so, the decision of the-appeal Court will be res judicata. The cases as indicated hereinbefore and as cited by Mr. Roy Chowdhury were all under Section 11 of the Civil P.C. and the Supreme Court judgment as mentioned above, has also been referred to in the case of Ramag'ya Prasad Gupta v. Murali Prasad, . In his reply to the above submissions on res judicata, Mr. Banerjee contended that in case of analogous suits, Section 11 of the Civil P.C. would have no application or such suits will not come under the said section. In support of his submissions Mr. Banerjee referred to the case of Narhari v. Shanker, which is also reported in 1950 SCR 754 and 1951 Supreme Court Reports 178 (sic), and in which case from the decree of trial Court in favour 'of the plaintiff two separate appeals were taken by two sets of the defendants. The appellate Court allowed both the appeals and dismissed the plaintiff's suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were prepared. The plaintiffs preferred two appeals. One of the appeals was time barred and on the principle of res judicata' the High Court dismissed both the appeals and on such facts it has been held that it was not necessary to file two separate appeals in this case. The question of 'res judicata' arose only when there were two suits. As there was one suit and both the decrees were in the same case and based on the same judgment and the matter as decided concerned the entire suit the principle of 'res judicata' did not apply. Further, the High Court ought to have given the appellant benefit of Section 5, Limitation Act, as there was conflict of decisions regarding this question.
24. Replying to the submissions of Mr. Banerjee on Section 578 of the West Bengal Estates Acquisition Act, 1953 or on the question of abatement Mr. Roy Chowdhury also referred to R. K. Mullik's case (1975 (1) Cal LJ 154) (supra) and took to the circumstances in which, a suit would abate and it was specifically claimed by him that there having no prayer for declaration of title and since the suit in the instant case was really a suit for partition and when the decree as passed therein, would come under the purview of Order 20 Rule 18 of the Code of Civil Procedure and as such the said determinations in R. K. Mullik's case (supra), would have no application and the instant case cannot be said to have been abated. While on the point, a further reference was made by Mr. Roy Chowdhury to the case of Ayubali Sardar v. Derajuddin Mallick, (1975) 2 Cal LJ 305, in which case, the suit under consideration was held to be not barred by the provisions of Section 57B of the West Bengal Estates Acquisition Act, 1953 and it was also held that the same would not abate on the provisions thereof. On the basis of the holding that Section 57B(l)and Section 57B(2)(a) primarily relate to preparation of Records of rights. Under sub-s. (1) all determinations of disputes relating to rent, status of a tenant and incidence of such tenancy in proceedings for preparation or revision of Records of rights, have been conferred the finality and suits in respect of such disputes shall either be not maintainable or in cases of pending proceedings those shall abate. Sub-section (2)(a) makes a similar provision in respect of any suit if it relates to alteration of any entry made in the Record of rights finally published, revised, made, corrected or modified under the provisions of Ch. V of the Act and in order to come within the purview or mischief of either Section 57B( 1) or 57B(2) the dispute or the question must be one which comes within the purview of determination in the preparation of the Record of rights. Section 57B(2) may operate as a bar to a suit for alteration of an entry in the finally published Record of rights, but such entry must be an entry made, only as a result of preparation or revision of the Record of rights, and as such must come within the purview of determination in the preparation of the Record of rights. A question or dispute which does not at all fall for determination in the process of preparation or revision of the Record of rights would come within the purview of either of those provisions and consequently the entertainment of a civil suit for determination of such a dispute or question is not barred by them nor was it so intended, apart from holding that the question which necessarily arises is whether the dispute as to title which arose for adjudication in the instant suit, did also fall for determination in the process of preparation or revision of the Record of rights. The scope of determination or adjudication in the process of preparation or revision of Record of rights is to be determined on the provisions relating thereto. The relevant provisions are in Ch. V. With regard to the object of the Statute and of the Rules framed thereunder it has been consistently held that the questions of title were never left to be decided by the Revenue Officer or the Assistant Settlement Officer in the proceedings for preparation of the Record of rights. Now, it is well settled that an entry in the Record of rights does not confer any title to the person in whose favour it is made nor does an erroneous entry therein take away title of the real owner. When an entry so made on a limited jurisdiction based on possession only, creates no right nor takes away any, it is difficult to comprehend why one's right to institute a suit for vindication of his title in a civil court should be barred. It has also been observed in that case that notwithstanding an entry adverse to the plaintiff's claim, a suit for declaration of title based on an independent cause of action is maintainable in law. Nothing prevents such a plaintiff from getting the relief claimed by him even without altering or correcting the erroneous entry in the relevant Record of rights.
25. It was also pointed out that whether or not there has been a claim for possession would be of important and relevant consideration, for the purpose of finding out whether the suit has abated on the basis of the determinalions as indicated hereinbefore. On the basis of the determination in the case of Kanai Lal Dhar v. Dhirendra Nath Mandal, (1966) 70 Cal WN 880, it was contended by Mr. Roy Chowdhury that what falls or does not fall within the partible assets does not fall outside the scope of a partition suit in which the question of title or benami can and should be determined. In fact, the above was the observation in the Division Bench judgment as referred to hereinbefore. Thereafter, reference was made by Mr. Roy Chowdhury to the case of Chhote Khan v. Mal Khan,. , which has observed that partition is a right incidence to the ownership of a property and once the parties are held as co-owners, their right to partition cannot be resisted and then reference was made by Mr. Roy Chowdhury to the case of Prokash Chandra Mukherjee v. Saradindu Mukherjee, , where the main question was, whether the defendant/appellants had perfected their title to the property in respect of such partition as claimed by the plaintiffs by adverse possession for the prescriptive period of 12 years or more and claim for partition in pleadings, whether would include claim for possession. In the facts of that case it has been observed that the plaintiffs were asking for demarcation of the portion of the property which should be there as a result of the partition embedded in the prayer for a claim for possession. On the basis of the pleadings, it was claimed by Mr. Roy Chowdhury that the judgment in the instant case was not thus vitiated in not framing an issue on adverse possession. In any event, he stated that such question of non-framing of issue cannot at this stage, be allowed to be agitated because firstly, such question, if relevant and germane in the facts of this case, would have been tried under Issue No. 6 as framed in Title Suit No. 50 of 1971, which was to the effect as to whether the plaintiffs were entitled to get a decree as prayed for and the said issue was really tried and disposed of along with Issues Nos. 1 and 2 of Title Suit No. 50, 1968. It was also pointed out by Mr. Roy Chowdhury and that too on a reference to order No. 39 dated 19th Dec. 1970, that since the substituted defendants, even in their additional written statements adopted the written statements of the original defendant, there was no wrong committed by the learned Court below in not framing the issue or any required issue on adverse possession, as claimed by Mr. Banerjee. We have indicated earlier as to when the written statements and the additional written statements were filed and so also the date, when issues in the instant case were framed.
26. Mr. Banerjee claimed that R. K. Mullick's case (1975 (1) Cal LJ 154) (supra) will appropriately apply in the facts of this case and as such, the learned Court below should have held the suit as framed, had abated. While on the question of non-framing of issues, he referred to Order XIV Rule 1(5) which lays down that at the first sitting of the Court, the Court shall, alter reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material proposition of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to defence. It was claimed by Mr. Banerjee that the said duty or onus, as lay very heavily on the Court, was not duly discharged by not framing the issues on the basis of the additional written statements as filed by Katyabala and another.
27. It should be noted that it was Mr. Banerjee's claim during the conclusion of his initial argument that since there was or has been no such additional issue as indicated hereinbefore, framed so this Court should send back the case on remand with necessary directions to the learned Court below to have the concerned additional issue either framed by this Court or to be framed by the learned Court below, to" be decided, on merits. To this, Mr. Roy Chowdhury pointed out that as would appear from the pleadings, that the parties went to the trial with the definite knowledge of each others case so there would not be any occasion for a remand as claimed by Mr. Banerjee and that too in the facts of this case. In support of such submissions Mr. Roy Chowdhury referred to the case of Nagubai Ammal v. B. Shama Rao, , where it has been observed that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue though no specific issue has been framed thereon, and adduce evidence relating thereto, apart from holding that although no specific plea that the sale in favour of the defendants was affected by the doctrine of lis pendens was raised in the pleading of the plaintiff and no specific issue was directed to that question the defendants went to trial with full knowledge that the question of lis pendens was in issue, has ample opportunity to adduce their evidence thereon, and fully availed themselves of the same and that in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them.
28. Mr. Roy Chowdhury, while on merits of this case, pointed out that we shall find out firstly, whether by sale in the instant case, Sashibhusan's interest had extinguished and secondly, if there was any case of adverse possession. He, of course, pointed out that perhaps there has been some pleadings on adverse possession, but since pleading is no proof, such case was not legally proved. In fact, he pointed out that there has been no statement regarding adverse possession and that being the position and that too in view of the evidence of D.W.I such determination on adverse possession was not necessary to be made by the learned Court below. Mr. Roy Chowdhury also pointed out that D.W.2 had not also proved adverse possession and from the intrinsic evidence as available in this case, there would be no room to doubt that no case of ouster was also made.
29. While on the question of possession, Mr. Roy Chowdhury referred to the determination in the case Kandu v. Kochi . It has been observed there that evidence of a conclusive character is necessary to show that a co-sharer's right has been lost by ouster. In fact, Mr. Roy Chowdhury contended that in this case there is no such evidence of ouster. Then, he referred to the case of Mahomed Baqar v. Naim-un-Nisa Bibi, , where it has been observed that as under the law possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their I knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period. There can be no question of ouster, if there is participation in the profits to any degree. It should be remembered that in the connected suit before the concerned appeal before the Supreme Court, the suit was one for partition and the facts found, were that the plaintiffs were minors at the time of their father's death, that they continued to live with their brothers in the same house down to the year 1918, that thereafter they went to reside with their husbands but that they continued to draw from the family chest for all expenses. It was not until 1933, when the defendants executed a waqf deed that there was any denial of the title of the plaintiffs, and down to that date, they had been in enjoyment of the properties. The evidence showed that what the plaintiffs received was not merely maintenance but was of the same character as the receipts by the defendants themselves from the estate during that period and on such fact, it has been held that the defendants' possession was not adverse to the plaintiffs. Mr. Roy Chowdhury, in fact, pointed out that adverse possession even though was pleaded in this case but the same was not proved in terms of the requirements of law. Mr. Roy Chowdhury also made a pointed reference, while on the submissions on adverse possession, to the case of Hardit Singh v. Gurumukh Singh, 28 Cal LJ 437: (AIR 1918 PC 1). In the concerned suit in that case, the parties were members of a joint Hindu family. The plaintiffs-appellants sued for possession of certain lands alleging that the lands belonged to the joint family and the defendants respondents had denied their title thereto and alleged that they were their separate property. The defendants denied that the lands had ever been joint family property, and pleaded that if they had been originally joint property, the appellants had lost their rights to them by abandonment, acquiescence and adverse possession. The Subordinate Judge found in favour of the plaintiffs and decreed the suit, but on appeal the Chief Court reversed that decision, so far as it related to the question of adverse possession, and dismissed the suit and it has been observed that the phrase "exclusive possession," when used in connection with joint property, has an equivocal meaning, but, when used in connection with property separately held, it has not. If by exclusive possession of joint Hindu family estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family. Uninterrupted sole possession of such property, without more, must be referred to the lawful title possessed by the joint holder to the use of the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members.
30. Sub-section (4) of Section 44 of the West Bengal Estates Acquisition Act, 19-53 postulates that every entry in the record of rights finally published under Sub-section (2), including an entry revised under Sub-section (2a), made under Section 42A or corrected under Section 45A shall, subject to any modification by an order on appeal under Sub-section (3), be presumed to be correct until it is proved by evidence to be incorrect and Rule 26 of the West Bengal Estates Acquisition Rules, 1954, has indicated the particulars to be included in a record of rights. On a reference to those provisions and the concerned Khatians, Mr, Roy Chowdhury contended, that the entries as made therein, were thus not authorised. While agreeing with the observations as above, we are also conscious of the fact that a Record of right is not a document of title and the same is at best an evidence of possession.
31. Mr. Banerjee, maintained in his reply that Durgabala, because of her conduct, was not a co-sharer of Panchanan or could be deemed to be so. It was claimed by Mr. Banerjee that when question of title was involved, ad valorem court-fee should have been paid and in any event, in the facts of the case, there should have been a prayer for declaration of title and there having admitted non-compliance with the above, the concerned suit, should have been held and observed to be not maintainable. He made such submissions, on the basis of the determinations in the case of Ganga Chandra Hazara v. Surendra Nath Khamrai . That was a suit for partition of joint family property, where strangers were impleaded on the ground that they were ostensible owners of certain properties and it has been observed that since prayer for partition in respect of such property involves a prayer for declaration of title to these properties and confirmation of possession as against strangers, so ad valorem court-fee on the value of such properties would be payable in addition to fixed court-fee, for prayer for partition. Mr. Banerjee, of course in his usual fairness stated, that even though earlier he has submitted on family arrangement, but in fact, such arrangement has not been duly pleaded, but his arguments will be available, as there are some evidence of such arrangement.
32. Considering the facts of this case, the pleadings and the prayers and having tested them in the light of the determinations amongst others in the case of Ram Krishna Mullick v. State of West Bengal (1975 (1) Cal LJ 154) (supra) and those in the case of Ayubali Sardar v. Derajuddin Mullick (1975 (2) Cal LJ 305) (supra), we do not find any justification in holding or in that, agreeing with the submissions of Mr. Banerjee, that the suit out of which this appeal arose, had abated. In fact, there has been no abatement of the suit under Section 57B of the West Bengal Estates Acquisition Act, 1953 and in any event Ram Krishna Mullick's case (supra), will have no application in a suit like the present one, where the question of title is involved. The above determination in Ram Krishna Mullick's case (supra), will not apply in this case since in the connected suit in our case, there was really no prayer for declaration of title and the same was one for partition and furthermore, the decree as passed, would come under Order 20 Rule 18 of the Code of Civil Procedure. The determinations in Ram Krishna Mullick's case (supra), in our view would enure to the benefit of the plaintiff/respondents and not the defendant/ appellants. Similarly, on facts, we cannot also agree with the submissions of Mr. Banerjee and that too on consideration of the decisions as cited at the Bar, that the learned Court below did any wrong in not framing such additional issue as claimed and as indicated by Mr. Banerjee and (that) too when, parties to the proceedings went to the trial, with full knowledge of each others case and that being the position, the non-framing of such additional issue as claimed, even if the same was necessary, has not caused any prejudice to any of the parties to the proceedings and they had in fact, received all and every opportunities to establish their respective cases. Such and above being the position, we do not also accede to the prayers of Mr. Banerjee that there should be an order for remand to the learned Court below, for having the lis, duly and effectively determined, on framing an additional issue as indicated above. In the facts of this case, we cannot also agree with the submissions of Mr. Banerjee, that there has been infraction of Order XIV Rule I Sub-rule (5) of the Code of Civil Procedure by the learned Court below. In terms of or under the above mentioned provisions, a Court has no doubt the obligation to frame proper issues from the materials on record, so that the material points in controversy may be duly and appropriately decided and finality of the concerned litigation is reached. We are of the view that the way and the manner in which the issues were framed, has left no room or any need for framing any additional issue, even after the admitted filing of the additional written statement by Katyabala and her daughter and that too when, the manner in which the said additional written statement was filed or the language in which the same was worded. The issues in this case were really framed upon the case as founded on the pleadings or which were consistent with the case of the respective parties.
33. Apart from the above, we hold that the rule of res judicata or principles analogous thereto, as submitted by Mr. Roy Chowdhury, would be applicable and available in this case and the suits being two and not one as claimed by Mr. Banerjee, such observations as made by us, would also get support from the cases as cited at the Bar and we are also and firmly of the view, that the submissions of Mr. Banerjee that such principles as indicated above, would have no application in analogous suits or such suits will not come under Section 11 of the Civil P.C., have no basis and merit. On the basis of the cases as cited at the Bar and the determinations as made therein, it appeared to us that the ultimate non-filing of the concerned appeal against the determinations in Title Suit No. 50 of 1971, has made the determinations as made therein final and as such, the rule of res judicata or principles analogous thereto can be involved and applied in this case and the observations in Narahari v. Shankar (supra), would have no application in this case and these in the case of Sheodan Singh v. Daryao Kumar (supra), will apply in the facts of this case, and which case in fact has recorded a finding contrary to that of Narahari's case (supra).
34. In view of our observations as above, there would be no other way out but to hold that this appeal has no merit and for such views, we were not really required to consider the case on merits. But, since arguments were also advanced on the merits of the case, we feel that even in spite of our findings as above, we should indicate our views on merits. On consideration of the intrinsic evidence and the attending circumstances as appearing from the records, and the relevant and necessary tests as appearing from the cases as cited at the Bar, we hold that the interests of Sashibhusan and that of Durgabala had extinguished and the plaintiff Phakiras had received the same and there was no merit on the submissions on adverse possession and in fact, such possession has not been duly proved or legally established. We are also of the view that there was or has been no substance in the submissions of Mr. Banerjee on the question of family settlement.
35. For the views as indicated above, we feel that there is no merit in this appeal and as such, the same should be dismissed. We order accordingly. The appeal is thus dismissed. There will be no order as to costs. The judgment and decree as impeached, are affirmed.
Mahitosh Majumdar, J.
36. I agree.