Ritendra Mohan Dutta v. Mira Roy — 1998 DIGILAW 119 (GAU)

This second appeal has been filed by the defendants. The trial Court decreed the suit. There was an appeal and the appeal was dismissed. Hence, this second appeal. 2. The case of the plaintiffs is that the defendant No.2 is the elder brother of the defendant No. 1, the present appellant. 18.8 1II lechas of land at Ward No. 1 of Dhubri town covered by Periodic Patta No.624, Dag No. 1176 stood in the names of the two defendants alongwith their four brothers. All being sons of late Lalit Mohan Dutta, B Schedule land is a part of the ancestral land used as a part of common path. After partition of the joint property amongst the brother, A Schedule land was separated from the original Patta No.624 and was recorded in new Patta No.723 with Batta Dag No.1815 having an area of one katha in the name of defendant No.2, a co-sharer. The defendant No.2 by registered sale deed No.2858 dated 19.3.80 sold the A and B Schedule lands and has claim over B Schedule to the plaintiff at a price of Rs.15,000/- and thus the plaintiff stepped into the shoes of the defendant No.2 as one of the co-sharers. The A and B Schedule lands were in the custody of defendant No. 1 who used to look after the entire property for all the brothers including defendant No.2, as defendant No.2 used to live outside. After execution of the sale deed, the defendant No.2 took the plaintiff to the defendant No. 1 and asked him to hand over possession of the land to the plaintiff and to do the needful. Defendant No. 1 gave assurance to defendant No.2 to leave everything to him. Defendant No. 1 as" assured did not deliver the possession of the land to the plaintiff and when the plaintiff filed an application for mutation of the land he objected to the mutation. Thereafter the plaintiff filed the present suit praying the following reliefs : (a) a decree declaring the title of the plaintiff over the land of Schedule A and Schedule B on the strength of thcdeed of purchase and the partition. (b) a decree of khas possession against the defendants for the land; (c) for costs and other reliefs. 3. Thereafter the plaintiff filed the present suit praying the following reliefs : (a) a decree declaring the title of the plaintiff over the land of Schedule A and Schedule B on the strength of thcdeed of purchase and the partition. (b) a decree of khas possession against the defendants for the land; (c) for costs and other reliefs. 3. A written statement was filed by the defendant No.l and his main plea was that the suit land alongwith the other land is the ancestral land with residential house thereon and is still in possession of all the co-chares being looked after and managed by him. That there was no partition and he was not aware of the deed of sale executed by the defendant No.2. He also took the plea that the deed of sale was procured by the plaintiff by taking advantage of the addiction of the defendant No.2, to liquor and he offered purchase to the property for the same price when he came to know of the sale. But the plaintiff instead of selling the land to him has filed the suit. That he is ready and willing to pay the purchase money. The defendant No.2 though he did not file the written statement he admitted the claim of the plaintiff. He also admitted that he sold the land to the plaintiff and he wanted that all the reliefs claimed by the plaintiff should be given to him. As many as 5 issues were framed in the suit. The issues are as follows : (i) Cause of action (ii) Validity of the deed of sale, (iii) Whether defendant No. 1 agree to give up possession; (iv) What reliefs are the parties entitled ? and (v) Whether there was an agreement as averred in para 10 of the written statement and whether the parties are bound by such agreement. 4. and (v) Whether there was an agreement as averred in para 10 of the written statement and whether the parties are bound by such agreement. 4. The learned Assistant District Judge on consideration of the materials on record came to the following findings : (i) defendant No.2 duly executed a registered sale deed, Ext 3 and there was no extraneous consideration in the said sale as attempted to the establish by the defendant No. 1, (ii) regarding partition the learned trial Court relied on the evidence of Mrinalkanti Dutta, Ex-Mouzadar of Dhubri town who was examined on Commission and on the basis of evidence of the Lot Mandal found that Ext 1 the certified copy of Zamabandi on partition was duly prepared after partition and the Ext 2 is the sketch map of the partition with signature of the Sub Deputy Collector, (iia) defendant No.l Satyendra Mohan Dutta the present appellant was the Attorney for all the brothers in the property and his signed in all the documents and that was proved from the records of Perfect Partition Case No.9/73-74 and it was further held by the learned Judge that the case for partition of the disputed land was filed by himself that is by the defendant No.2 himself i.e. Satyendra Mohan Dutta and all received notices. As per prayer of the co-sharers the partition was allowed vide order dated 4.1.75 and thereafter separate patta was issued, (iii) Regarding so called agreement the learned trial Court did not give any finding inasmuch as he found that no portion of the paternal house falls in the suit land. It was however held that the plaintiff is not bound by such agreement. The trial Court came to the finding that the defendant No. 1 failed to establish that he was ready and willing to pay the money as agreed. More than three years passed after execution of the sale deed, but there is no evidence to show that defendant No. 1 was ready and willing to pay the money. It was found that on the land covered by Ext 3 there was no dwelling house. It was not a part of the dwelling house. It was a vacant land and this plea was also not taken up in the written statement. It was found that on the land covered by Ext 3 there was no dwelling house. It was not a part of the dwelling house. It was a vacant land and this plea was also not taken up in the written statement. The clear cut finding of the trial -Court as follows : "No portion of the paternal house falls in the suit land". That being the position, the claim of the defendants for relief under section 22 of the Hindu Succession Act, section 4 of the Partition Act and section 44 of the Transfer of Property Act was found not to be tenable. There was an appeal being Title Appeal No.3 of 1988 before the learned Additional District Judge at Dhubri. The learned Additional District Judge at Dhubri on consideration of the materials on record found as follows : (i) the learned Assistant District Judge has rightly held that there is no evidence to show that the defendant No.2 executed a registered sale deed, Ext 3 under the influence of liquor, (ii) The proof of partition was clear from the deposition of Mrinal Kanti Dutta, Ex-Mouzadar of Dhubri town. His deposition was based on relevant records. Ext 1, the certified copy of the Zamanbandi on , partition. Ext 2, the sketch map of the partition with signatures, of the Sub Deputy Collector and the defendant No.l Satyendra Mohan Dutta. The appellate Court also considered the evidence of PW 3, Smti Maya Nath, the registered Kanoongo of the office of the Deputy Commissioner, Dhubri who deposed from the records and found the partition to be a valid partition long before the sale in 1980. The partition was effected by order dated 4.1.75 and thereafter the Zamabandi was corrected, a separate map was prepared and separate dag was created for this land. Thereafter the defendant No.2 sold the land in favour of the plaintiff and at the time of sale the defendant No.2 was the absolute owner of the suit land. Regarding the agreement to repurchase the land, the appellate Court found as follows: "There is no evidence to show that the defendant No. 1 has actually offered the proposed amount of Rs.20,000/- to the plaintiff. The sale deed was executed on 19.3.80 and the suit was filed on 10.5.83. Within that period of three years nothing was done in pursuance of the oral agreement". The sale deed was executed on 19.3.80 and the suit was filed on 10.5.83. Within that period of three years nothing was done in pursuance of the oral agreement". It was finding of the trial Court and the appellate Court that oral agreement was not binding on the plaintiff. It was found that on the suit land there is no ancestral dwelling house. As a matter of fact the lower appellate Court categorically pointed out that there was no pleading that there is any ancestral dwelling house over 1 katha of the suit land. Having arrived at this finding, the appeal was dismissed. Hence, this second appeal. 5.1 have heard Sri BK Das, learned Senior Advocate for the appellant and Sri DC Mahanta, learned Senior Advocate for the respondent. 6. The only substantial question of law which was formulated in this second appeal is as to whether the claim of the pre-emtion of the suit land is permissible. As far as back as in (1885) ILR 7 AU 775 (Govind Dayal vs. Inayatulla) Justice Mahmood pointed out as follows : "It (right of pre-emption) is simply a right of substitution entitling the pre-emptor by means of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee, in respect of the rights and obligation arising from the sale under which he has derived his title. It is in effect, as if in a sale deed, the vendee's name was rubbed out and the pre-emptor's name was substituted in his place." The right of pre-emption must arise because of legal incident to which the sale itself was subject. Let us find out whether in this particular case, sale was subject to such legal incident. 7. Sri Das, learned counsel for the appellant first places reliance in section 4 of the Partition Act, 1893. Section 4 of the Partition Act provides for partition suit by transferee of share in dwelling house. As pointed out above, the present suit is not a suit for partition and further it is also not a suit for partition of dwelling house. So, the question of application of section 4 of the Partition Act does not arise. Sri Das also relies on two decisions i.e. AIR 1981 Calcutta 278 (Santosh Kumar Mitra vs. Kalipada Das). As pointed out above, the present suit is not a suit for partition and further it is also not a suit for partition of dwelling house. So, the question of application of section 4 of the Partition Act does not arise. Sri Das also relies on two decisions i.e. AIR 1981 Calcutta 278 (Santosh Kumar Mitra vs. Kalipada Das). The next case is AIR 1987 Calcutta 210 (Gopal Chandra Mitra vs. Kalipada Das & others). As will be evident that both the cases were with regard to dwelling house. In 1981 case one Santosh Kumar Mitra purchased a share of the dwelling house and it was in that context the Calcutta High Court pointed out that section 4 shall apply to such a partition case. In 1987 there also, it was a case with regard to share purchase of dwelling house. So, these two cases do not help the learned counsel for the appellant. 8. Sri Das, learned counsel for the appellant also relies on AIR 1996 SC 2146 (Smti Vijayalakshmi vs. B. Himantharaja Chetty & others). That also was a case whether a person taken on adoption can be deemed to be member of the family or he can be deemed to be a stranger. In the case on context the whole section 4 of the Partition Act as well as the question of partition was considered and the Supreme Court pointed out that adopted son cannot be deemed to be stranger. So, this case also does not help the appellant. Sri Das also relies on AIR 1997 SC 471 (Ghantesher Ghosh vs. Madan Mohan Ghosh). That was a case where the Supreme Court pointed out that benefit of section 4 is benevolent provision and shall be available at all relevant stages of litigation between contesting co-owners till litigation reaches its terminus by way of full and final discharge and satisfaction of final decree for partition. That also was a case for partition of dwelling house belonging to undivided family. There, a transfer was made to stranger by transfer one become the owner of such dwelling house and it was in that context the Supreme Court pointed out as indicated above. So, this case also does not help the appellant inasmuch as it is not a case of dwelling house. There, a transfer was made to stranger by transfer one become the owner of such dwelling house and it was in that context the Supreme Court pointed out as indicated above. So, this case also does not help the appellant inasmuch as it is not a case of dwelling house. Sri Das wants to draw sustenance from section 22 but that only gives a right to other co-sharer and pay preferential right acquired the interest proposed to be transferred . That is not the case in hand. That right must be exercised before transfer and it cannot be exercised after transfer. Mr. Das places reliance in section 44 of the Transfer of Property Act. But that also relates to dwelling house and in this particular case we are not concerned with dwelling house. Sri Das makes submission that the partition which was made in the year 1975 is not a valid partition as it did not comply with all the requirements of partition as laid down in Assam Land and Revenue Regulation. That is not the substantial question of law in this appeal. I am not inclined to decide it. But at the same time, I point out that the defendant No. 1 himself made partition and now he cannot make a U turn to deviate from that partition which was effected by him. 9. In that view of the matter, there is no merit in this second appeal and the same is dismissed. The stay order, passed earlier stands vacated. I make no order as to costs.