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2002 DIGILAW 62 (CAL)

Bhim Chandra Adhikary v. Paresh Chandra Adhikary

2002-01-31

NARAYAN CHANDRA SIL

body2002
JUDGMENT The present appeal is directed against the judgment and decree passed by Sri B. Bhattacharyya, learned Additional District Judge, Third Court, Howrah dated 30.11.1979 in connection with Title Appeal No. 186 of 1979 which arose out of the judgment al1d decree of dismissal passed by Sri R. K. Chakraborty, learned Munsif of Amta dated 11.5.1979 in connection with Title Suit No. 48 of 1976. 2. The suit was for declaration of title and injunction. Both the lower Courts have traversed the facts of the case in details and as such I refrain myself from mentioning the same here in this judgment. In fact, the vortex of the case is the question of succession of Mangala Bala, the defendant No.1 under the Hindu Law and the jurisdiction of the Civil Court to entertain the suit where there is incidental challenge of the records of rights. The substantial question of law have been formulated accordingly to the terms whether the Courts below made any perverse finding in appreciation of the question of law. 3. None appears for the respondent and hence the appeal is taken up for ex parte consideration. 4. Mr. Gopal Chandra Mukherjee, appearing on behalf of the appellant! defendant argues before me that the proper forum was the Land Tribunal and' not the Civil Court when the question regarding the correctness of the record of rights is involved and in this connection he has referred to the provisions of Section 8 of the West Bengal Land Reforms and Tenancy Tribunal Act. According to him the jurisdiction of the Civil Court has been ousted by the provisions of that section. Mr. Mukherjee has also taken me through Rule 88 of Mulla's Hindu Law relating to Dayabhaga School and it appears therefrom that the sapindas of the Bengal School succeeds in the following order: 1-3. Son, grandson and great-grandson. 4. Widow. 5. Daughter. But, there was priority amongst the daughters and thus, the unmarried daughter succeeds; and then the married daughter who has or is likely to have male issue. 5. So the question for determination before the Courts below as regards the claim of the parties was whether Mangala Bala, on the facts and circumstances of the case, had any male issue at the time of death of her mother. 5. So the question for determination before the Courts below as regards the claim of the parties was whether Mangala Bala, on the facts and circumstances of the case, had any male issue at the time of death of her mother. It was the case of the plaintiff that Mangala Bala had no male issue but it was controverted by the defence. It appears that both the parties have adduced oral evidence before the trial Court in order to substantiate their case and both the Courts below disbelieved the fact that Mangala Bala had any male issue. The first appellate Court has also relied on Exhibit (A), as it appears from the paper book and came to the conclusion that the case of the defence that Mangala Bala had any male issue was shuttered. 6. Exhibit (A) is a registered sale deed executed by Mangala Bala wherein she had claimed that she got the property from her mother. And Exhibit (A/1) goes to show that Mangala Bala executed a registered sale deed in favour of Bhim Chandra Adhikary in respect of the property which she inherited from her deceased husband. Exhibit (A/1) is conspicuously silent as regards the mention of her son. Had there been a son of Mangala Bala, under the Old Hindu Law that son would have got the preference in the line inheritance and in that case Mangala Baja could not have disposed of that property. Besides, whether Managal Bala had any son or not at the material point of time is a pure question of fact which, sitting in the Second Appeal, I am not inclined to interfere with. The next question as to whether the jurisdiction of the Civil Court has been ousted by the provisions of West Bengal Land Reforms and Tenancy Tribunal Act has been settled in the ratio decided by Their Lordships Mr. Justice Altamas Kabir & Mr. Justice Alok Kumar Basu in the case of (1) Sabita Mukherjee & Ors. v. State of West Bengal & Ors., 2002 (1) CLJ 20. Justice Altamas Kabir & Mr. Justice Alok Kumar Basu in the case of (1) Sabita Mukherjee & Ors. v. State of West Bengal & Ors., 2002 (1) CLJ 20. The Division Bench of this Court observed in that case that the amended provisions of Clause (d) of Section 6 of the said Act do not clothe the Tribunal with power or jurisdiction to nullify the effects of a decree is passed by the Civil Court in a properly constituted suit, or when the State one of the contesting parties and the decree is passed on contest against the State. That being the position I do not find any merits in the submission made by the learned Advocate for the appellant, particularly when the prayer of declaration of title was made before the Civil Court. In view of what has been discussed in the foregoing lines the appeal is dismissed ex parte without any costs. The judgment and decree passed by the lower appellate Court is hereby affirmed. The suit is decreed. The title of the plaintiff to the suit property is declared and the defendants are permanently restrained from interfering with the possession of the plaintiff in the same.