Research › Search › Judgment

Calcutta High Court · body

2003 DIGILAW 157 (CAL)

Sultan Ahmed Sarkar v. Amitabha Singha Roy

2003-03-31

PRATAP KUMAR RAY

body2003
Judgment The plaintiffs, being the appellants have tiled this second appeal challenging the judgment and decree of first appellate Court, being the learned Additional District Judge, 3rd Court at Burdwan dated 6.5.89 passed in Title Appeal No. 11 of 1982 reversing the judgment and decree of the learned Munsif, 3rd Court at Burdwan dated 18.12.81 in Title Suit No. 75 of 1971. 2. Originally, when this appeal was admitted under Order 41 Rule 11 of the Code of Civil Procedure, a Division Bench of this Court, by the order dated 24.6.97, simply passed an order that appeal would be heard. No substantial question of law was framed for hearing of this second appeal. After the amendment of Code of Civil Procedure, it is a mandatory provision in terms of Section 100 of the Code of Civil Procedure to frame a substantial question of law before final hearing of a second appeal. On that score the parties were invited to submit their respective submissions for necessary determination by this Court as to whether there exists any substantial question of law. 3. Learned Advocate for the appellants has vehemently contended that the first appellate Court did not at all consider the relevant material documents, namely, Ext. 7 and Ext. F in determining the rights of the parties. Ext. 7 is the certified copy of solenama filed in Title Suit No. 38 of 1949 and Ext. F is a Kabuliyat executed in favour of one Dwijapada Das by the defendant No. 1 in the year 1356 B.S. To substantiate that point that the learned first appellate Court since at all had not considered that question in its true and proper perspective, learned Advocate for the appellants had drawn the attention of this Court on the findings as recorded by the learned first appellate Court as well as the judgment of the learned trial Court wherein the appellants succeeded. The suit out of which this appeal arises was filed in a composite manner. Except the defendant No.1 other defendants were made parties in the suit for necessary relief of decree for partition of the joint properties, whereas the defendant No.1 was made a party for having necessary declaration that the defendant No.1 had no possession over the property and the record of rights, that is revisional record of rights as prepared was erroneous. Except the defendant No.1 other defendants were made parties in the suit for necessary relief of decree for partition of the joint properties, whereas the defendant No.1 was made a party for having necessary declaration that the defendant No.1 had no possession over the property and the record of rights, that is revisional record of rights as prepared was erroneous. The learned trial Court considered the matter on issue of possession of the suit plot No. 5238 having its character as a danga land measuring .63 decimals, wherein the defendant No. 1 claimed his possession on the strength and basis of the record of rights prepared under the West Bengal Estates Acquisition Act, and which culminated to a final proceeding under Section 44(2a) of the West Bengal Estates Acquisition Act, wherefrom no appeal was preferred by the plaintiffs. However, learned Advocate for the respondents has opposed the contention of the learned Advocate for the appellants that substantial question of law is involved in adjudicating this appeal. Learned Advocate for the respondents submitted that so far as possession is concerned, learned first appellate Court considered at length all the evidence on record and this Court sitting in the jurisdiction of second appeal will not distrub the factual findings made by the last Court of fact, that is first appellate Court. Further, it is contended that since it is not at all a question of title between the parties inter se the plaintiffs and the defendant No.1, substantial question of law as thrashed by relying upon the judgment of the Supreme Court by the learned Advocate for the appellants, has no basis. It is contended that the possessory right of the parties concerned was considered and adjudicated upon by the learned first appellate Court. This Court accordingly has considered the findings of the learned first appellate Court on the particular issue of Ext. 7 and Ext. F. It appears from the judgment of the first appellate Court that the learned Court below considered Ext. 7, which was a certified copy of the solenama filed in Title Suit No. 38 of 1949. The said suit was a family partition suit wherein solenama was filed in between the parties concerned in respect of the joint properties and ultimately in terms of the solenama the said suit was decreed. 7, which was a certified copy of the solenama filed in Title Suit No. 38 of 1949. The said suit was a family partition suit wherein solenama was filed in between the parties concerned in respect of the joint properties and ultimately in terms of the solenama the said suit was decreed. The learned first appellate Court did not find the suit plot No. 5238 in that solenama and accordingly the learned first appellate Court held that:- "Since the time of the ancestor, the appellant (originally defendant No. 3 Jnanada) had been in actual possession of the same and because of such long possession to the notice of all including the respondents, he (appellant) acquired indefeasible title to the suit property by way of adverse possession and prescription. During his such possession the appellant let out a portion of the suit plot to Dwijapada Das for using the same as Bhagar a dumping site of carcass, at a monthly rent of Rs.25/- till 1371 B.S and kept himself in actual possession of the rest of the suit land by enjoyment of the sale proceeds of the trees standing thereon. The enteries in the C.S. record of rights regarding the names of the plaintiffs is fraudulent and the result of collusion between the respondents and the settlement employees. The right of the appellant was subsisting at the time of the R.S record of rights and was duly entered therein and was finally published after the objection thereto raised by the respondents was over-ruled in the duly drawn up proceeding under Section 44(2a) of the W.B.E.A. Act after due local enquiry and to the full satisfaction of revenue authorities. The respondents had no manner of possession in the suit property. That being so the respondents had no title and interest in the suit property and cannot get any declaration in respect of any share in the suit property and claim for partition is a myth." 4. Hence, it appears that there is a clear finding on factual matrix by adjudicating the document itself, that is, the solenama filed in Title Suit No. 38 of 1949 on the reflection of the findings as recorded in that solenama as well as final adjudication in the proceeding under Section 44(2a) of the West Bengal Estates Acquisition Act, which the plaintiffs suffered in the litigation made thereto qua the defendant No.1. Hence the contention of the learned Advocate for the appellants that the evidence on record was not properly determined or considered is not the real state of affairs. The learned first appellate Court also held with reference to Ext. 7 to this effect:- "But when he wanted to establish the title of the respondents by referring to Ext. 7, an early decree of a partition suit among the co-sharers, that is to say, the respondents and others, he failed to show that the suit plot was included in the list of properties which the respondents and others held as joint properties in 1949 that is long after the C.S. record of rights was prepared. From Ext. 7 it appears that a number of properties of the nature of danga, jungle, viti and like other properties were left joint among the parties of that partition suit and it also appears from there that the parties had huge number of joint properties. If the suit plot which is one of the plots of C.S. Khatian No. 1486 (Ext.6) would have been the properties of the respondents and their predecessors and they had possessed the same or were in possession of the same, that should have found place in the said partition suit among the respondents and others. It cannot be said that through mistake or over-sight that had lost sight of the respondents and their predecessors and others co-sharers being mentioned in the said partition suit or a part of the subject matter of that suit inasmuch as besides the suit plot there are 5 other plots in the C.S. Khatian No. 1486. That being the position of the case of the respondents and as the respondents have not been able to prove their possession of the suit plot it cannot be said that the R.S. record of rights is wrong and erroneously prepared. 5. So far as Ext. F is concerned, learned first appellate Court held:- "It may be mentioned here that the suit plot being danga kind of land no definite act of possession could be possible. 5. So far as Ext. F is concerned, learned first appellate Court held:- "It may be mentioned here that the suit plot being danga kind of land no definite act of possession could be possible. With regard to the evidence of P.W.s it appears to me that P.W. 1 has said that he has dwelling house near the suit land and he has also said that he had seen the respondents to possess the suit land by enjoying the fruits and cutting some trees standing on the suit plot. In cross-examination he has said that he saw Sarfaraz Hossain to sell trees to Kalinath. He has further said that 2 Segun trees were also sold to Dhiren 2/3 years before he deposed. He has not been able to say the price. P.W. 2 Kalipada has told in his evidence that he purchased Segun trees from the plaintiffs in 1365 B.S. and paid Rs.120/-. But in cross-examination he has said that he had no paper to show nor had he any witness that he purchased the trees for Rs.120/-. Moreover, at the bottom of his cross-examination it appears that a criminal case was pending between him and Jnanada. This P.W. 2 has, of course, not told the name of P.W. 1 P.W.3 has told in his evidence that he had seen Kalinath to purchase 2 Segun trees and he had also seen one Dhiren to purchase 2 Segun trees. Dhiren has not been examined and I have already mentioned that the nature of the evidence that Kalinath has deposed in this case and he having a criminal litigation against Jnanada it may be said that Kalinath did not depose truly and simply to wreak vengeance against Jnanada, he was come to depose to satisfy his malice against him. This being the nature of the evidence of the respondents' witnesses I do not think that the evidence has got any value in order to supersede or rebut the entries in the R.S. record of rights. I am, therefore, of opinion that it is not difficult to procure such witnesses but it is difficult for the Court to believe them in the back-ground of strong documentary evidence supported by strong presumptive evidence created by R.S. record of rights published finally under Section 44(2a) against which there was no appeal as provided under Section 44(3) of the W.B.E.A. Act. 6. 6. Hence, it appears that the factual issue has already been determined by the learned first appellate Court. Such factual determination may De right, may be wrong, but the same cannot be questioned for adjudication of any decision as substantial question of law by this Court. This point has been settled by several judgments of the Apex Court as relied upon by the learned Advocate for the respondents, including the judgment reported in 1999 (3) SCC 722 . Learned Advocate for the appellants has relied upon the judgment reported in 1999(9) SCC 237 to substantiate his argument. But on a mere perusal of the said judgment, it appears that the Apex Court has dealt with the issue as would be of substantial question of law in determining the documentary evidence if it relates to question of title. Here, the question is different not relating to title of the property, but possessory right of the parties concerned with reference to the record of rights as finally crystallised in a proceeding under Section 44(2a) of the West Bengal Estates Acquisition Act, 1953. However, learned Advocate for the respondents has drawn attention of this Court on several other judgments, on the question of onus of the parties concerned to claim ownership who is not in possession of the property as well as on the question of status of a Korfa tenant. Since on the basis of the argument as advanced by the learned Advocate for the appellants this Court has confined the decision on the finding of issue as to whether there exists any substantial question of law in this second appeal, those cases are not being considered. Having regard to the factual matrix of the case with reference to Ext. 7 and Ext. F as urged by the learned Advocate for the appellants alleging, inter alia, that it was not considered, this Court is not finding any material which can be said as substantial question of law for decision by this Court. In the result, this appeal stands dismissed, but there will be no order as to costs.