Calcutta High Court (Appellete Side)
Seikh Sahidul & Ors vs Sajahan Sheikh & Ors on 22 August, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
S.A. 146 of 2016
Seikh Sahidul & Ors.
-vs-
Sajahan Sheikh & Ors.
For the appellant : Mr. S. P. Roychowdhury,
Mr. Rabindra Nath Dutta,
For the respondents : Mr. Partha Pratim Roy,
Mr. Dyutiman Banerjee, Mr. Sayantanee Chattopadhyay.
Heard on: : 18-08-2016 Judgment on: : 22.08.2016
Indrajit Chatterjee, J.:-This court is hearing this appeal as against the judgment and decree passed by the learned Additional District Judge, Fast Track, 4th Court, Krishnanagar, District: Nadia as passed on 4th April, 2008 in Title Appeal No. 76 of 2005 wherein the learned Court of First Appellate was pleased to allow the appeal on contest and set aside the judgment and decree passed by the learned Civil Judge (Junior Division), Nabadwip, District: Nadia, in connection with Title Suit No. 45 of 1997 on 31st January, 2005.
Let me start with the fact on which the parties fought the legal battle before the Trial Court.
The case was filed on 15th July, 1997 before that court at Nabadwip and originally, it was a suit for declaration of title and permanent injunction. On 15th of March, 1998, the plaint was amended to incorporate therein the story of dispossession to the extent of 17 decimal out of 44 decimal and prayer was also made for recovery of Khas possession and for mandatory injunction. This may be treated as the prelude.
The plaintiffs came up with the case that the suit property originally belong to Santosh Kumar Chatterjee and he sold the suit property to Uchhap Sheikh, i.e. the predecessor-in-interest of the plaintiffs and the proforma defendant nos. 13 to 26 as per registered deed of sale dated 14-11- 1941. The plaintiffs claimed that since purchase, Uchhap was in exclusive possession of the suit property till his death. The plaintiffs admitted that Uchhap has two brothers, namely, Abdul Joban and Abdul Khabir who used to reside in separate Mess from Uchhap. The plaintiffs also claimed before the learned Trial Court that the C.S. R.O.R was wrongly prepared in the names of Uchhap Sheikh, Abdul Joban and Abdul Khabir. It was also the case of the plaintiffs that the entries of the R.S.R.O.R. in respect of the suit property as regards the story of dispossession as per one amicable settlement is wrong. This court has been appraised by the appellants that the L.R. R.O.R of the suit property has been recorded in the names of the plaintiffs and the proforma defendants.
Thus, the plaintiffs before the Trial Court claimed that they have good title over the suit property along with proforma defendants referred to above which they inherited from Uchhap Sheikh.
The defendants, being the legal heirs of Abdul Joban and Abdul Khabir, claimed that actually C.S. R.O.R. was rightly prepared taking into consideration the possession of those three brothers, I repeat Uchhap Sheikh, Abdul Joban and Abdul Khabir. The defendants claimed that all these three brothers were the joint owners of the suit property and Uchhap never acquired any title by way of that deed of 1941 executed by Santosh Kumar Chatterjee nee Chattopadhyay. Regarding this, the defendants claimed in paragraph-11 of the W/S that Santosh was the son of Tara Sankar Chatterjee who had only intermediate interest over the said Khatiyan and thus, he had only rent receiving interest in the suit property and actual possession was with the Raiyats and the deed will show that only the rent receiving interest was transferred to Uchhap as per that deed of 1941. They further claimed that by virtue of this deed, they cannot negate the presumption of the two finally published record of rights, i.e. C.S.R.O.R and R.S.R.O.R. The defendants also claimed that Uchhap with the help of his son, who was an influential employee of the Estate of Ranajit Pal Chowdhury, got the R.S. record manipulated and the story of amicable partition was recorded in that R.S. R.O.R. They also claimed that Tara Sankar Chatterjee had other co-sharers in respect of the said Khatiyan No. 390 and as such, he had no exclusive saleable right over the property.
In the additional written statement, these defendants claimed that value of the suit property was at least 1 lakh and the said Trial Court had no pecuniary jurisdiction to try the suit. It was also claimed that the suit is barred under Sections 64 and 65 of the Limitation Act.
When the second Appeal was admitted the following substantial questions of law were framed by the Division Bench.
i) Whether the learned First Appellate Court committed substantial error in law in holding that the learned Trial Court has come to a wrong decision by way of giving the plaintiffs title of the suit property entirely?
ii) Whether the learned First Appellate Court committed substantial error in law in not holding that the finally published L. R. Record of Rights should be presumed to be correct in the absence of any proof to the contrary?
iii) Whether the learned First Appellate Court committed substantial error in law in not appreciating the scope of the provision of Article 65 of the Limitation Act in deciding the rights of the parties?
It was submitted by Mr. S.P. Roy Chowdhury, learned Senior Advocate appearing on behalf of the appellants by taking me to the judgments passed by the learned First Appellate Court that in the said judgment neither the case of the plaintiffs and nor the case of the defendants were taken into consideration and as such one perverse judgment was passed relying solely on the record of rights. He further submitted that the record of rights cannot create any title in favour of the persons in whose names such record of rights stand but such record of rights may be a good piece of evidence as regards possession.
He claimed that if the deed of 1941 is believed then this Court may come to the conclusion that actually these appellants and the proforma respondents are the absolute owners of the suit property. He further contended that it is true that the C.S.R.O.R. stands in the names of these three brothers and that is one earlier document compared to the deed of 1941 but a registered deed has a presumptive value unless that presumption is rebutted by any cogent evidence. He took me to the judgments of the First Appellate Court to convince this Court that nothing was discussed in that judgment as to how that presumption in favour of that registered deed was rebutted.
He also took me to the C.S.R.O.R., that is exhibit -3 and claimed that the recital in the R.S.R.O.R. as regards disclaiming the story of amicable partition is wrong and if such recital is wrong this Court may not bank upon the said R.S.R.O.R. Regarding the L.R.R.O.R. that is exhibits - 5, 5A, 10 and 11, it was the submission of Mr. Roychowdhury that these L.R.R.O.R.s stand in the names of the plaintiffs. He further submitted that admittedly there was no partition in between the plaintiffs. He also took me to the recital of exhibit 1, which is a sale deed of 1941 to show that not only the rent receiving interest was transferred but also the entire land as mentioned in the schedule of that deed was also transferred along with the rent receiving interest.
Regarding Section 65 of the Limitation Act, 1963 Mr. Roychowdhury submitted that as in this case the contesting defendants did not raise any claim as regards adverse possession the claim of the present plaintiffs/appellants and proforma defendants may be exercised upto any date as it is not barred under that section.
Regarding the scope of second appeal Mr. Roychowdhury submitted that the scope of the Second Appellate Court is not like that of the First Appellate Court. He cited a three judge bench decision of the Apex Court as reported in (2001)3 SCC 179 (Santosh Hazari vs. Purushattan Tewari) wherein the Apex Court decided regarding the scope of second appeal in view of Section 100 of the Civil Procedure Code. In that case the Apex Court held that where a new point was raised before the High Court for the First time, it would not be a question involved in the case unless it went to the root of the matter. He also cited another decision of the Apex Court as reported in (1999)4 SCC 243 (Pawan Kumar Gupta vs. Rochiram Nagdeo) as regards the burden of proof while disproving one registered document. He also cited another decision of the Apex Court as reported in AIR 1966 SC 735 (Bhagwati Prasad vs. Chandramaul, a full bench decision of the Apex Court wherein the Apex Court held relying on order 6 Rule 2 and order 41 Rule 33 that reliefs should be founded on pleadings made by the parties.
He also attacked the judgment of the First Appellate Court on the ground that even if the deed is disbelieved then 1/3 interest of the plaintiffs and the proforma defendant Nos. 13 to 26 cannot go out as the C.S. record of rights stood in the names of the predecessors in interest of the parties. He admitted that no partition has been effected between the parties.
Mr. Partha Pratim Roy, the learned Advocate appearing on behalf of the contesting respondents, that is respondent Nos. 1 to 12 admitted that it is true that the plaintiffs and the proforma respondent Nos. 13 to 26 can safely claim title in respect of 1/3 of the suit property banking upon the C.S. record of rights which stood in the names of their predecessor in interest and his two brothers.
It was further been submitted by Mr. Roy that Tarapada was the superior landlord as per exhibit 6 and he had no other interest over the suit property except the rent receiving interest. Thus he submitted that what interest Tarapada had, he only transferred to that Uchhap and as such Uchhap did not get any further interest over the suit property except the rent receiving interest in respect of the suit property held by Tarapada Chatterjee nee Chattopadhyay. He further substantiated his argument by saying that for that reason Uchhap filed one Rent Suit No. 3647 of 1953 for realisation of rent against the defendant of that suit and that it will further strengthen his argument that Uchhap only got rent receiving interest in respect of the suit property by virtue of that Exhibit 1.
Regarding that C.R. record of rights he submitted that Uchhap did not take up the matter to any authority during his lifetime to challenge that record of rights which was in the names of Uchhap and his two brothers. Thus he submitted that the C.S. Record of Rights which were published either in 1920 or 1926 has a presumptive value as regards possession of those three brothers as raiyats under the superior landlord. Thus, he claimed that Uchhap did not get any special interest over the suit property except that rent receiving interest by virtue of Exhibit 1.
To counter the L.R. record of rights, that is exhibits 5, 5A, 10 and 11 as filed by the plaintiffs Mr. Roy submitted by taking me to exhibit A series to say those L.R.R.O.R. were published in the year 2005 and those are in the names of almost all the contesting respondents. He submitted that Exhibit A relates to respondent No.1, Exhibit A1 relates to respondent No.3, Exhibit A2 relates to respondent No. 2, Exhibit A3 relates to respondent No. 4, Exhibit A5 stand in the name of Ibrahim, who is the father of respondent No. 5 and 6, Exhibit A6 relates to respondent No. 10, Exhibit A9 relates to respondent No. 8 and A10 relates to respondent No. 12. He admitted that all those documents were produced before the learned Appellate Court as additional evidence but as because those were produced before the learned First Appellate Court. Those documents cannot lose their evidentiary value.
Regarding the story of dispossession as held by the learned Trial Court Mr. Roy submitted to take into consideration the circumstance that the dispossession as claimed by the plaintiffs was made within three days after the order of injunction was passed. He claimed that the order of injunction was passed on 26.03.1997 and again the said dispossession was made on 31.03.1997 and thereafter on 15.06.1997. He further submitted that the amendment petition was filed within four months of the filing of the suit which goes to show that the claim of the plaintiffs as regards possession of the suit property even on the date of filing of the suit did not stand on good footing. He also attacked the judgment of the Trial Court that the learned Trial Court just in one paragraph believed the story of construction of a room over the suit property and passed an order of mandatory injunction. Regarding this aspect Mr. Roy submitted that the findings in this regard of the learned Trial Court is to be set aside. He admitted at the time of argument that after the passing of the West Bengal Estate Acquisition Act, 1953, the status of the parties are nothing but co-sharers as the rent receiving rights acquired by the predecessors in interest of the plaintiffs and the proforma defendants had vested to the State after notice under Section 4(1) of the Act of 1953 was issued. He cited a decision of the Apex Court as reported in (1997)5 SCC 317 (State of West Bengal vs. Arun Kumar Basu and another.
Thus he reiterated that he has no objection if this Court comes to the conclusion that the appellants and proforma respondents have in total 1/3 interest over the suit property.
In reply it was argued on behalf of the appellants by taking me to Exhibit 6, that actually Tarapada Chattopadhyay was the raiyat in respect of the plot No. 390, which is the subject matter of the suit. He further submitted that A series, that is L.R.R.O.R. standing in the names of the contesting defendants were procured during the First appeal hearing and as such the Trial Court had no opportunity to see all these documents. Thus, he concluded that this Court also cannot take into consideration Exhibit A series.
I have noted the argument put forward by the learned Advocates appearing on behalf of the parties, I have taken into consideration the argument so advance by the parties, taken into consideration the decisions referred to by the learned Advocates, taken into consideration the judgments passed by the learned Trial Court and also the learned Appellate Court, I have perused the oral and documentary evidence adduced by the parties both before the learned Trial Court and also before the First Appellate Court (the L.R.R.O.R's).
Substantial question of law No.1 - On reading and rereading the judgment of the First Appellate Court, this Court is satisfied that the First Appellate Court committed substantial error in law in holding that the learned Trial Court came to a wrong finding by giving the plaintiff title over the suit property entirely. This point needs answer as to whether the plaintiffs and proforma defendant predecessor in interest Uchhap Seikh got title over the suit property by virtue of deed of 1941 (Exhibit 1). I have gone through Exhibit 6 which shows that Tarapada Chottopadhya etc. were the superior landlords in respect of the suit property and the raiyats were the three brothers, namely, Uchhap Seikh, Abdul Joban and Abdul Khabir. As per Exhibit 1, Santosh Kumar Chottopadhya, who executed that deed in favour of Uchhap Seikh, is the son of Tara Shankar Chottopadhya. This, Tara Shankar Chottopadhya's name is not there in the C.S.R.O.R it may be mentioned that this Tara Shankar Chottopadhya may be the full brother of Tarapada Chottopadhya. Exhibit 6 shows that Tarapada Chottopadhya and others were the superior landlords in respect of plot No.475 of Khatian No.390 that is the suit property and as such they had only rent receiving interest over the suit property. This, being so only that interest was transferred to Uchhap Seikh by virtue of that Exhibit 1.
I have gone through the headlines of Exhibit 1 which also refers to rent receiving interest over the said property. The defence in the written statement also claimed regarding such rent receiving interest in paragraph 11 of that document. Now the question is, whether anything more than rent receiving interest was transferred by Santosh to Uchhap by virtue of that deed? My answer in this regard is clear 'no' as the C.S.R.O.R shows that the predecessor in interest of Santosh had only rent receiving interest over the suit property. The C.S.R.O.R as per PW 1 was prepared in 1920. Even if C.S.R.O.R was prepared in subsequent years like that of 1926 then even the C.S.R.O.R was finally published long before 1941.
On reading and rereading this Exhibit 1 this court is satisfied that in the recital there is no reflection regarding the C.S.R.O.R, that Uchhap and his two brothers were the recorded Raiyats under Tarapada Chottopadhya and others. It is true that the nomenclature of Exhibit 1 is that of a deed of sale but by virtue of that only the rent receiving interest was transferred. This finding of this Court is fortified by the un-rebutted claim of the plaintiff that this Uchhap filed one rent suit being Rent Suit NO.3647 of 1953 in respect of plot No.279 of Khatian No.392. This plot No.279 and Khatian No.392 is very much there in the schedule of Exhibit 1. This deed further shows that the interest of the vendor Santosh Kumar Chottopadhya was one intermediary interest. In that deed in the schedule there is also mention that Uchhap Seikh was the raiyat in respect of Khatian Nos.390, 392 and 393 and the amount of rent has also been mentioned therein. Thus, this court is satisfied that the learned Trial Court erred while coming to a decision that the plaintiffs and the proforma defendants had full title over the property which their predecessor in interest Uchhap Seikh got by virtue of that deed Exhibit 1. The learned Appellate Court did not err in law in holding that the learned Trial Court came to a wrong finding as regards that. This Court reiterates that the learned Trial Court relied upon only Exhibit 1 to come to the conclusion and did not take into consideration the C.S and R.S R.O.R.S. Thus, this point is answered accordingly in the negative and in favour of the contesting respondents.
Substantial question No.2 - On this point I must say that Exhibit A series that is the L.R.R.O.Rs were prepared in the names of most of the contesting respondents or their predecessors in interest. It is true that those documents were filed before the First Appellate Court but simply for that reason those documents cannot be thrown out of this legal battle. This court is not unmindful of the fact that the Exhibits-5, 5A, 10 & 11 are also the L.R.R.O.Rs published before the Exhibit A series were prepared. I am told by the learned advocate appearing on behalf of the appellants that one appeal is pending before the Land Reforms Authority as regards Exhibit A series. But, there is no documentary evidence to prove that aspect and as such I am not going to believe the claim of the plaintiffs/appellants.
Be that as it may, the L.R.R.O.Rs Exhibits-5, 5A, 10 & 11 and A series are finally published documents and those R.O.Rs stand in the names of the plaintiffs, contesting defendants and the proforma defendants or their predecessors in interest. It is needless to say that the R.O.Rs indicates possession and not that of title. It is true that continuous possession of a person in respect of a particular property may lead to acquisition of title and such a person may claim adverse possession against the whole of the world including the real owner. I reiterate that simply because some L.R.R.O.Rs are in the names of the plaintiffs/appellants that is not enough to prove their title in respect of the suit property.
The learned appellate court did not err in law on this point as the LR record of rights not only stand in the names of the plaintiffs or the proforma defendants but are also standing in the names most of the contesting defendants or their predecessors. It is true on principles that finally published record of rights should be presumed to be correct but simply relying on that the appellants or the proforma respondents cannot acquire any title over the suit property. Thus, this point is answered in the affirmative and in favour of the contesting respondents.
Substantial question No.3 - It may be noted that in the written statement or in the additional written statement the contesting defendants did not claim adverse possession over the suit property. In view of the provisions of Section 65 of the Act of 1963 the present suit as filed by the plaintiffs was very much maintainable and was not hit by that section. The learned First Appellate Court did not appreciate the scope of that provisions of Section 65 of the said Act of 1963 but considering the factual aspect of this case such non-answering to this question was redundant as no plea of adverse possession was raised. Thus, this point is answered in the negative and in favour of the appellants.
Thus, I have answered the substantial questions of law, while answering the substantial question No.1 I have ruled that the plaintiffs and proforma defendants did not acquire any title over the suit property by virtue of that deed of 1941 (Exhibit 1). This Court is not unmindful of the fact that the C.S.R.O.R in respect of the suit plot stood in the names of Uchhap Sk. and his brothers Abdul Joban and Abdul Khabir. The parties before this Court are all the legal heirs of those three persons. The C.S.R.O.R which is a very old document shows that those three brothers were the raiyats under the vendor of that Exhibit 1. Taking the admission from the lips of Mr. Roy, the learned advocate appearing on behalf of the contesting respondents this Court is satisfied that the parties to the suit/appeal are co-sharers in respect of the suit plot No.475 of Khatian 390. The rent receiving interest what Uchhap got in respect of the suit property vested to the State after the West Bengal Estate Acquisition Act, 1953 came into force. This Court is not unmindful of the fact that the suit property is one non-agricultural land. This Court can rely upon the decision of Arun Kumar Basu (supra) wherein the Apex Court held that as soon as the notification under Section 4(1) of the W.B.E.A. Act of the Act of 1953 is issued the estate will vest to the State free from all encumbrances and the same principle will apply also regarding non-agricultural land including the tenancy rights subject to retention of land to the extent of the permissible limit.
Thus, the learned Trial Court was not right in decreeing the suit as a whole in favour of the plaintiffs relying on that deed Exhibit 1. The Appellate Court was also wrong in allowing the appeal and reversing the judgment of the Trial Court relying solely on the C.S.R.O.R but at the same time did not give any benefit to the legal heirs of Uchhap Sk. in whose name the C.S.ROR was prepared along with his two brothers. I may reiterate here that all the three brothers had 1/3 share each over the suit property. That interest which they had naturally devolved upon their legal heirs who are now the parties before this Court.
Thus, this court is of the view that the plaintiffs and the proforma defendants are the co-sharers of the suit property along with the contesting defendants as per their shares. I make it further clear that the plaintiffs and the proforma defendants have in total 1/3 interest over the suit property and the contesting defendants have 2/3 interest over the suit property being the legal heirs of Abdul Joban and Abdul Khabir. In this regard the deed of gift in respect of a portion of the suit property by Uchhap executed in favour of the plaintiff no.1 is also to be reckoned with but that must be within the group of the legal heirs of Uchhap.
Regarding the claim of possession of the plaintiffs/appellants before the Trial Court or of the proforma defendants in respect of the suit property is also to be taken into consideration. The suit was filed on 15th July, 1997 and the amendment petition claiming dispossession over the suit property was filed on 5th March, 1998. It may be noted that the order of injunction was passed by the learned Trial Court on 26.07.1997 and the claim of dispossession as made out in the amendment petition was respectively on 31.03.1997 and 15.06.1997. Thus, the starting of the dispossession came just after 3 or 4 days of the passing of the order of injunction. I must say here that the suit property has not been partitioned between the parties and the possession of one co-sharer is also the possession of the other co-sharer and as such the learned Trial Court err in passing of mandatory order of injunction to demolish one Ghar (room) standing on the suit property which was allegedly constructed within those three days. This Court likes to go with the observation of the Trial Court regarding this aspect in which the learned Trial Court did not believe the story of dispossession. The decree of the learned Trial Court granting permanent injunction as well as mandatory injunction are to be set aside and I do that. I may add here that the parties being co-sharers there cannot be any order of permanent injunction. The findings of the learned Trial Court as regards of the declaration of title in respect of the entire property in favour of the plaintiffs is also hereby set aside. The plaintiffs and the proforma defendants have title over the suit property to the extent of 1/3 share of the suit plot.
Thus, to sum up it is the finding of this Court that the parties are co- sharers, that the land has not been partitioned in between the parties. The plaintiffs and the proforma defendants have 1/3 share over that un- partitioned land and to that extent the plaintiffs are entitled to get the decree. The right, title and interest in respect of undivided 1/3 share of the suit property is hereby declared in favour of the plaintiffs along with the proforma defendants. The prayer of permanent injunction is refused as the land has not been partitioned. I have already ruled that there was no question of passing of any order of mandatory injunction to demolish that Ghar (room), if at all constructed. The finding of the Appellate Court in this regard is hereby confirmed.
Thus, this Second Appeal is allowed in part. The judgment and decree of reversal as passed by the Appellate Court is hereby set aside. The judgment and decree of the Trial Court is modified to this extent that the plaintiffs and proforma defendants have 1/3 share over the suit property. The decree for permanent injunction and mandatory injunction as passed by the learned Trial Court are hereby set aside.
I prefer not to impose any cost in this appeal.
Office is directed to communicate this judgment to the First Appellate Court along the LCRs for taking necessary action on its part.
Certified copy of this Judgment, if applied for, be given to the parties on priority basis.
(Indrajit Chatterjee, J)