Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 469 (CAL)

Manindra Nath Ghosh v. Sudhir Kumar Ghosh

2001-08-01

Joytosh Banerjee

body2001
JUDGMENT Joytosh Banerjee, J.: The present appeal is directed against the appellate decree and the judgement dated 9th of March, 1983 passed in connection with the Title Appeal No. 115 of 1981 by the Sub-Judge, Jangipore, Murshidabad through which he allowed the appeal, set aside the judgement and decree ofthe trial court and dismissed Title Suit No. 2/1977. 2. In brief, the case of the plaintiff/appellant is that the plaintiff and Bhupendra Nath Ghosh the predecessor-in-interest of the defendants since deceased were two full brothers. The suit plots belonged to the plaintiff and the defendants in equal share. Actually the suit property belonged to the father of the plaintiff. The predecessor of the defendants who acquired the suit property in an auction sale held by the court, but the sale price for acquisition of the suit property was paid by the plaintiffs father. In this way, the property was purchased in such auction sale in the name of predecessor in such auction sale in the name of predecessor of the defendants, that is to say Bhupendra Nath Ghosh, the eldest son of the plaintiffs father. But it is alleged that the plaintiffs said eldest brother was not the real purchaser of the property, he was mere name lender. It is the further case that after the death of the plaintiffs father, the plaintiff and his eldest brother did not remain together and they were separated in mess and the properties left by their father were partitioned at the time when the plaintiff was still minor, in the year 1351 B.S. It is further alleged that at the time of partition a Memo of partition was prepared in which the eldest brother as well as the plaintiff at the instance of co-villagers signed. It is further alleged that on attaining majority the plaintiff agreed to the said Memo of partition. It is the further case that since the preparation of the said Memo of partition, the plaintiff is in exclusive possession of the property allotted to his share by virtue of that partition to the exclusion of others and he started possessing the same as of right and as the owner openly and to the knowledge of all, in exercise of his hostile title and in this way plaintiff also acquired an independent title by virtue of the said adverse possession. It is further alleged that although the plaintiff was in possession, it is alleged, in the R.S. record of rights, the same was not recorded due to breach of trust on the part of the plaintiffs eldest brother and so the entry in the R.S. record of rights is wrong. It is further alleged that the L.R. record of rights where the plaintiffs name has been recorded as in permissive possession is also erroneous. Since the defendants denied the title of the plaintiff and about to dispossess the plaintiff from the suit property, the plaintiff had to file the suit. The defendants in the written statement denied all material allegations made in the plaint. They have alleged that the Memo of partition was nothing but a paper transaction and there was no partition of the suit property. The specific defence case is that, their aforesaid predecessor-in-interest, possessed the suit property exclusively by cultivation. They have supported the entries made in the R.S. record of rights but has alleged that the L.R. record of rights is erroneous. 3. On the basis of the aforesaid pleadings, the learned Munsif raised certain issues including the issues touching the questions whether the plaintiff appellant had any right, title and interest in the suit property and also whether the suit was maintainable in the present form. So far as the maintainability is concerned, the learned trial court held that the present suit would not be barred under section 66(1) of the Civil Procedure Code as the plaintiffs claim over the property was not solely based on the auction purchase by his father in the name of his eldest brother. Regarding the title, the learned trial court held that Bhupendra Nath Ghosh the eldest brother had no source of income at the point of time when the property in suit was purchased in auction and the plea taken by the defendants that the suit property was purchased by the maternal grand-mother of Bhupendra in the name of her grand-son was also not acceptable and so the father of the said predecessor-in-interest of the defendants and the plaintiff was the real purchaser of the property, since the defendants plea against the plaintiffs assertion about amicable partition of the properties between the plaintiff and his eldest brother was evasive, the plea of partition was accepted. In this way he came to a conclusion that properties left by the father of the plaintiff were partitioned between the plaintiff and his eldest brother. In appeal, the main question which was raised was whether the suit as framed was barred by the provisions of section 66 of the Civil Procedure Code. Before the first appellate court it was argued on behalf of the plaintiff/respondent that as the plaintiff filed the suit not only on the basis of his father's title in the suit property but also on the basis of his independent title in such suit property acquired by him through adverse possession for 12 years in the suit property, the suit was maintainable and the plaintiff could get a decree. The learned Sub-ordinate Judge, Jangipore examined the question whether the plaintiff/ respondent had been able to establish his pliant case of adverse possession. He pointed out that on this point there is only one oral testimony that is to say the evidence of P.W.2 to support the plaintiff/respondent's assertion that he was in exclusive possession of the suit property since the mutual partition. On going through such evidence, the learned appellate court however found that as per the oral testimony of the witness in the cross-examination, the plaintiff was in possession for about 2 years and before that the plaintiffs bargadar named Suren was in possession of the suit property for about 2 years. So the learned appellate court below found, considering the evidence of the plaintiff/respondent that plaintiffs 4 years possession ii1 the suit property was established by his witness P.W.2 and there is no corroborative evidence in support of the assertion on the part of the plaintiff/respondent that he was in possession of the suit property for 12 years. That apart the essential ingredients of adverse possession were not at all in the record as there was lack of evidence to the effect that the plaintiff/respondent ever denied the title of his eldest brother Bhupendra Nath Ghosh that is to say predecessor-in-interest of the present defendants/appellants or the plaintiff ever asserted his hostile title in such suit property or the plaintiff possessed half of the suit land as the owner of the same and as of right. He also considered that the entry in the R.S. record of right (Ext. b) stood in the name of appellants, predecessor-in-interest Bhupendra Nath Ghosh. He also considered that the entry in the R.S. record of right (Ext. b) stood in the name of appellants, predecessor-in-interest Bhupendra Nath Ghosh. The learned Judge also pointed out that there was no cogent evidence to establish that at the time of R. S. operation the said eldest brother of the plaintiff/respondent Bhupendra Nath Ghosh was entrusted with the work of looking after the recording of the name of persons in possession, and also circumstance that auction sale certificate (Ext. 2) already stood in the name of such eldest brother, therefore the plaintiff as an ordinary prudent man should be more cautious in the matter, also went against the plaintiff/respondent. The learned first appellate court, in the aforesaid background came to a firm finding that the suit was not at all maintainable in law in view of the bar imposed by section 66 of the Civil Procedure Code. The learned Judge of the first appellate court further held that the title conferred on Bhupendra Nath Ghosh by the said sale certificate (Ext. 2) would devolve upon the present defendant/appellants as heirs of said Bhupendra Nath Ghosh and there was nothing to show that the said title of the defendants/appellants was extinguished in any way. On the basis of the aforesaid findings, the learned Judge reversed the judgement of the trial court and dismissed the suit. 4. From the admission order of this court, I do not find any substantial question of law, which was formulated through such order. Now, at the time of hearing of the appeal, after hearing the learned Senior Counsel for the appellant and also on going through the record specially the judgement impugned and also the judgement passed by the trial court I find that in the present appeal there is following substantial question of law which should be decided:- i) Whether the suit in question is maintainable in view of the provisions under section 66 of the Civil Procedure Code? 5. It has already been seen that in the present suit Bhupendra Nath Ghosh, the predecessor-in-interest of the defendant/respondents were the certified purchaser and the specific assertion of the plaintiff/respondent regarding his title over the suit property was that the said certified purchaser was a mere name lender and the father of the plaintiff and not the said certified purchaser was the actual purchaser in such auction purchase. Both the courts below concurrently held that the suit would be hit by the provisions of section 66, if the plaintiffs claim over the suit property solely based on the said auction purchase. It has been seen that the trial court decreed the suit holding that the plaintiff/appellant acquired title over the suit property by adverse possession and therefore the suit would not be hit by the provisions of section 66 Civil Procedure Code as the plaintiffs claim over the title was not solely based on such auction purchase, the appellate court on the other hand reversed the finding and dismissed the suit. 6. The learned Senior Counsel for the appellant has submitted that in the instant case section 66 of the Civil Procedure Code has got no application and for this he has relied on a decision of this court, in the case of Tinkari Ghosh vs. Kamala Kanti Ghosh & Ors., reported in 1977 (2) CLJ 284. Before I proceed further to consider whether in the facts and circumstances of the case section 66 of the Civil Procedure Code is applicable or not, I like to quote the said section, which runs as follows:- (1) No suit shall be maintained against any person claiming title under a purchase certified by the court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims and in any suit by a person claiming title under a purchase so certified, the defendants shall not be allowed to plead that the purchase was made on his behalf or on behalf of someone through whom the defendant claims. (2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner. Now in the case of Tinkari Ghosh vs. Kamala Kanti Ghosh & Ors. Now in the case of Tinkari Ghosh vs. Kamala Kanti Ghosh & Ors. (supra), the question before this court in the Second Appeal was whether the plaintiffs/respondents were precluded from claiming title in respect of a portion of the suit property in the partition suit on the ground that the auction purchase in the name of Tinkori was really on behalf of his father Dolgobindo through whom the plaintiffs claimed 1/3 interest. The High Court considered the Sale Certificate dated 29th September, 1916, which was issued by the Deputy Collector under section 11 of the Bengal Rent Recovery (Under-Tenures) Act, 1865 and not under the Civil Procedure Code, 1908. In that background, this court observed as follows:- "In the instant case, the auction purchase in the name of Tinkari was made under the provisions of the Bengal Rent Recovery (Under-Tenures) Act, 1865(Bengal Act VIII of 1865). The said Act was passed by the Lieutenant Governor of Bengal in Council to amend the law for the sale of such under tenures as by the title deeds or otherwise for the recovery of arrears of rent in respect thereof. The Collector of Land Revenue under section 3 of the said Act conducted sales for recovery of arrears of rent of patni taluks and other saleable under-tenures of the nature defined in section 8(1) of Regulation VII of 1819. The Act VIII (B.C. of 1865) contained the procedure for publication of notices, conducting sales, for setting aside sales, delivery of possession, distribution of sale proceeds etc. Section 11 of the said Act, inter alia, provided that when the purchase money had been paid in full, an officer holding the sale shall give the purchaser a certificate in the form prescribed in the schedule annexed to the said Act and shall further on the purchaser making application and depositing costs, put the purchaser in possession of the under-tenure and publish the fact of the said purchase. Therefore, the auction purchasers under the Act were certified in the manner laid down in the said Act and not according to the procedure prescribed in the Civil Procedure Code for execution of decrees. Sections 13 and 14 provided respectively for appeal and revision. Thus, the above provisions relating to sale of under-tenures were self-contained and not subject to the provisions of the previous or the present Code of Civil Procedure." 7. Sections 13 and 14 provided respectively for appeal and revision. Thus, the above provisions relating to sale of under-tenures were self-contained and not subject to the provisions of the previous or the present Code of Civil Procedure." 7. The learned Counsel for the appellant has submitted that auction sale mentioned in section 66 only in respect of such auction sale held under the Civil Procedure Code or under any Special Act where auction is held as per provisions of the Civil Procedure Code. The learned Counsel for the appellant has further submitted that in the present case, the auction purchase was made on the basis of a decree in the rent suit made under the provisions of the Bengal Tenancy Act. He has contended that through sections 146A, 146B, 147, 147A, 147B in Chapter XIII and under different sections of Chapter XIV of the B.T. Act specific provisions have been made for sale, setting aside sale, when the sale would become absolute. So according to the learned Counsel aforesaid provisions under the Bengal Tenancy Act have made the said Act quite independent from that of Civil Procedure Code. In this respect, the learned Counsel has drawn my attention specifically to section 174A of the Bengal Tenancy Act in Chapter XIV, which contains the provisions when the sale would become absolute or would be set aside and the provisions for return of purchase money in certain cases. 8. Now on going through the decision in Tinkari vs. Kamala Kanti Ghosh & Ors. (supra) very carefully I find that the learned Judge came to clear finding that sub-section (1) of section 66 is applicable in case a suit is brought against any person claiming title under a purchase certificate by the court in such manner as may be prescribed. But in that case, the purchase in the name of Tinkori was made under the Bengal Rent Recovery (Under Tenure) Act, 1865, the Deputy Collector of Land Revenue under section 3 of the said Act conducted the sales for revocery of arrears of rent of patni taluks and others saleable under-tenures of the nature defined in section (1) of Regulation VII of 1819. On examination ofthe different provisions, the learned Judge found that the said Act contained the procedure for publication of notices, conduct of sales, for setting aside sales, delivery of possession, distribution of sale proceeds etc. On examination ofthe different provisions, the learned Judge found that the said Act contained the procedure for publication of notices, conduct of sales, for setting aside sales, delivery of possession, distribution of sale proceeds etc. Moreover under section 11 of the aforesaid Act when the purchase money had been paid in full an officer holding the sale shall give the purchaser a certificate in the form prescribed in the Schedule annexed to the said Act and shall further, on the purchaser making application and depositing costs, put the purchaser in possession of the under-tenure and publish the fact of the said purchase. Therefore, the auction purchasers under the said Act were certified in the manner laid down in the said Act and not according to the procedure prescribed in the Code of Civil Procedure for execution of decrees. In this way it was held that the aforesaid provision relating to sale of under-tenure were self contained and not subject to the provisions of the previous or the present Code of Civil Procedure. But that is not the case here. In the present case, the certificate issued by the court was admittedly so issued under Order 21 Rule 94 of the Civil Procedure Code as there was no provision made in the Bengal Tenancy Act for granting such certificate. In the result I hold that following, the aforesaid decision it cannot be said that sale in question in the suit had no connection with Civil Procedure Code and therefore the provisions of section 66 of the Civil Procedure Code have got no application under the instant suit. 9. Besides the aforesaid contention, the learned Senior Counsel for the appellant also questioned the effect of repeal of section 66 of the Civil Procedure Code by section 7 of the Benami Transaction (Prohibition) Act, 1988. Under section of the aforesaid Act, section 66 of the Civil Procedure Code has been repealed. The question is whether the pending suits would be affected by such repeal. I have not formulated the aforesaid question in the substantial question of law in view of the fact that same question has been decided by the Hon'ble Supreme Court in the case of R. Rajagopal Reddy (Dead) by L.Rs. & Ors. vs. Padmini Chandrasekharan (Dead) by L.Rs., reported in (1995)2 SCC 630 . I have not formulated the aforesaid question in the substantial question of law in view of the fact that same question has been decided by the Hon'ble Supreme Court in the case of R. Rajagopal Reddy (Dead) by L.Rs. & Ors. vs. Padmini Chandrasekharan (Dead) by L.Rs., reported in (1995)2 SCC 630 . There the question was what was the effect of repeal of section 82 of the Indian Trusts Act by section 7 and the Hon'ble Court at page 644 observed as follows, after considering the provisions of both the aforesaid Acts along with section 6 of the Genenal Clauses Act:- "It becomes, therefore, obvious that the Act by section 7 has effected a repeal of section 82 of the Indian Trusts Act and while repealing this provision no different intention appears from the Act to affect any right, privilege or liability acquired under section 82 by either side or any pending proceedings regarding such obligation or liability. Therefore, such pending proceedings will have to be continued or enforced as if the repealing Act had not been passed." 10. The aforesaid observation is equally applicable to the provisions contained in section 66 of the Civil Procedure Code and therefore it can be said without any hesitation that in the suit which was filed in 1977, the provisions contained in section 7 of the Benami Transaction (Prohibition) Act, 1988 have got application. 11. In the result, I find that the learned appellate court has rightly allowed the appeal and dismissed the suit. In doing so I must also observe that the document filed in connection with the alleged partition between both parties, was not a deed of partition. It was also not memorandum of partition. 12. In the result, the present appeal must fail. Accordingly, the appeal is dismissed but since none has appeared on behalf of the respondent, I make no order as to cost. Appeal dismissed.