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2005 DIGILAW 546 (GAU)

Sarada Sundari Roy v. Gouranga Chandra Roy

2005-08-01

A.B.PAL

body2005
JUDGMENT A.B. Pal, J. 1. By this Second Appeal the judgment and decree dated 2.1.1997 passed by learned Additional District Judge, West Tripura, Agartala in Title Appeal No. 51 of 1993 has been assailed. The first appellate court by its impugned judgment affirmed the judgment and decree dated 24.6.1993 passed by the Assistant District Judge, West Tripura, Agartala in Title Suit No. 66 of 1977. Having lost in both the courts below, the Defendants-Appellants herein have preferred this second appeal. 2. I have heard Mr. K.N. Bhattacharjee, learned senior Counsel, assisted by Mr. S. Chakraborty, learned Counsel for the Appellants and Mr. A.K. Deb, learned Counsel for the Respondents. 3. A brief resume of the material facts may be noted as follows: The first Respondent Gouranga Chandra Roy instituted Title Suit No. 66 of 1977 on the file of the Subordinate Judge, West Tripura, Agartala against the four Appellants herein seeking partition of the suit lands appertaining to Khatian Nos. 2572 and 2560 claiming half of the said lands. His case is that the suit lands along with other lands originally belonged to Tripura Sundari Kapali, who was joteder under Basmayee Debya. After her demise, her three sons Ramesh Roy, Banamali Roy and Mahesh Roy became the owners of her lands and they partitioned the lands among themselves equally. The suit land fell into the share of Mahesh Roy, who had two sons, namely Monmohan Roy and Lalmohan Roy, who were jointly, and equally owning and possessing the suit lands. Monmohan Roy executed a gift deed in favour of the Plaintiff and thus after becoming owner of 50% of the suit lands, he along with the Defendants-Appellants had been possessing the same enjoying usufructs therefrom. But in the last revisional survey, the entire suit lands have been recorded in the name of Lalmohan Roy and predecessor in interest of the Appellants herein. The Plaintiff filed revision petition under the Tripura Land Revenue and Land Reforms Act ('TLR & LR') before the Revenue authority and the said revision petition was pending at the time of filing the suit. It may be noted here that during the pendency of the suit, the revision petition was rejected confirming thereby correctness of the record of rights in respect of the suit lands in the name of the Appellants herein. It may be noted here that during the pendency of the suit, the revision petition was rejected confirming thereby correctness of the record of rights in respect of the suit lands in the name of the Appellants herein. However, the Plaintiff approached the Defendants-Appellants for partition of the suit lands, which they turned down compelling the Plaintiff to file the suit for partition. 4. The first and fourth Appellants; the mother and the son, contested the suit by filing separate written statement, but their defence is same. The second and third Appellants, who are daughters of Lalmohan Roy, did not, however, file any written statement and accordingly, the decree was passed ex parte against them. The definite and specific case of the contesting Appellants herein is that the suit land is not the ancestral property of Lalmohan Roy, who acquired the same by himself. He was the joteder under Hem Chandra Debbarma as indicated in the document (Ext.7) when Mommohan Roy was in Bangladesh. The lands admittedly belonged to Jotes No. 357 and 359, which were initially recorded in Parcha Nos. 2572 and 2560 in the name of Lalmohan Roy (Ext. A series). Thereafter, the suit lands have been recorded in the finally published Khatian No. 2572 in the name of the Appellants. They have been comfortably in possession of the suit lands to the exclusion of others including the Plaintiff-Respondent. In the relevant column of the khatian, the name of the Plaintiff-Respondent has not figured indicating thereby that they were never in possession of the suit lands. As the suit land is not the ancestral property, but the acquired land of Lalmohan Roy, the Plaintiff-Respondent cannot claim half of the same on the basis of a gift deed executed by his father. 5. By the impugned judgment the trial court decreed the suit for partition mainly relying oh two documents, Ext. 1 and Ext. 3. While dealing with Issue No. F, the trial court in para 6 of the impugned judgment held, thus: The Plaintiff had no basic documents to prove that his predecessor-in-interest had share over the suit land except some documents which prove the share of the Plaintiff's father over the same. The 'some documents' which are not basic documents are Exts. 1 and 3 series. Ext. 1 is a document which has been issued by the Govt. The 'some documents' which are not basic documents are Exts. 1 and 3 series. Ext. 1 is a document which has been issued by the Govt. of Tripura showing apportionment of certain amount of compensation in the name of Manmohan Roy and Lalmohan Roy for acquisition of two gandas of land of Jote No. 357. As the lands admittedly belonged to Jote Nos. 357 and 359 and two gandas of land of Jote No. 357 was acquired by the State Government awarding compensation in the name of two brothers, the trial court jumped to the conclusion that the brothers were joint owners with equal shares in the entire suit land. Though admittedly the suit lands appertain to above two jotes, it is nobody's case that all the lands of the two jotes were owned by the brothers. This position stands buttressed by a registered sale deed (Ext. A), executed by one Haricharan Das in favour of the present Appellants transferring one kani of land of plot No. 3669 of Khatian No. 2572 and of Jote No. 359. The other documents on which reliance was placed by the trial court as well the first appellate court is Ext. 3, which is a deed of conveyance executed by one Aswini Kr. Deb in favour of Manmohan Roy and Lalmonan Roy. The lands reconveyed have been shown in the schedule of the sale deed measuring one kani appertaining to Jote No. 136. No plot number or khatian number has been mentioned therein. It may be noticed here that admittedly the suit lands appertained to Jote Nos. 357 and 359, not Jote No. 136. The learned trial court as well as the first appellate court have held that land measuring one kani was reconveyed by Ext. 3 in the name of both the brothers and they were entitled to equal share of the suit lands. The other documents relied on by both the courts below are documents of Ext. 2 series. Of this series, the first one is a sale receipt issued by Basmayee Debya in favour of Tripura Sundari Kapali (Roy) for lands measuring four kanis ten gandas one kara of Jote No. 82. The second sale receipt issued by Basmayee Debya is in favour of Banamali Kapali for lands appertaining to Jote No. 136. 2 series. Of this series, the first one is a sale receipt issued by Basmayee Debya in favour of Tripura Sundari Kapali (Roy) for lands measuring four kanis ten gandas one kara of Jote No. 82. The second sale receipt issued by Basmayee Debya is in favour of Banamali Kapali for lands appertaining to Jote No. 136. From these two documents, the courts below came to the conclusion that the suit lands are the ancestral properties and, therefore, the Plaintiff-Respondent by virtue of the gift deed of his father Manmonan Roy became the owner of the 50% of the same. 6. Against the judgment decreeing the suit for partition with cost, the Appellants preferred the first appeal, which met the same result as the first appellate court accepted the entire findings of the trial court. 7. Mr. Bhattacharjee, learned senior Counsel for the Appellants advanced his submission that the courts below misread the evidence on record and miserably failed in arriving at a correct decision. The Plaintiff-Respondent Gouranga Ch. Roy claimed equal share of the suit lands on the strength of a gift deed from his father and, therefore, it was his duty to prove with admissible documents that Manmohan Roy was the owner with equal share of the suit lands. Unless his father's ownership of 50% share of the suit lands is proved, the Plaintiff-Respondent stands nowhere. The trial court observed that no basic document in support of title of Manmohan Roy could be produced by the Plaintiff-Respondent. The two documents relied on for decreeding the suit are Exts. 1 and 2. As I have noted above, by Ext. 1, the amount of compensation for two gandas of land of Jote No. 357 was apportioned between Manmohan Roy and Lalmohan Roy equally. This does not mean that the two brothers were the owners with equal share of the entire land of Jote No. 357. As discussed above, certain lands of Jote No. 359, which were not the suit lands, were purchased by the Appellants herein from one Haricharan Das indicating thereby that under the same Jote there can be different owners. Ext. 1, in my view, proves only the point that the lands measuring two gandas of Jote No. 357 were owned in equal share by the two brothers, this much and no more. These lands were acquired in 1959 and the amount of Rs. Ext. 1, in my view, proves only the point that the lands measuring two gandas of Jote No. 357 were owned in equal share by the two brothers, this much and no more. These lands were acquired in 1959 and the amount of Rs. 21.56 was paid to two brothers on 18.11.1959, long before the finally published khatians were prepared in the name of Lalmohan Roy under the TLR & LR Act, which came into force in 1960. Mr. Bhattacharjee further submits that Ext. 3 is the deed of reconveyance by Aswini Kr. Deb in favour of Monmohan Roy and Lalmohan Roy. But the lands appertained to Jote No. 136, which is certainly different from the suit lands, which appertained to Jote Nos. 357 and 359. As regards Ext. 2, the revenue receipts, Mr. Bhattacharjee submits that these documents clearly indicate that they appertain to Jote Nos. 82 and 136. Ignoring the identification of these lands and erroneously holding that these exhibited documents are related to the suit lands, both the courts below came to a wrong finding that Manmohan and thereafter his son Gouranga Ch. Roy became the owner of half of the suit lands. 8. Controverting the submissions of Mr. Bhattacharjee, Mr. Deb, learned Counsel for the Respondents argued that after the concurrent findings by the two courts below, it is not open in the second appeal to make any submission on a new fact that the lands originally belonged to Hem Ch. Debbarma under whom Lalmohan Roy and Monmohan Roy were joteders. Though the finally published khatians stand in the name of the Appellants herein and there is no indication about the position of the Plaintiff-Respondent in column 23 thereof, Mr. Deb strenuously argued that the records of right under the finally published khatian prove all title and the Exts. 1, 2 and 3 series definitely and unequivocally prove that the suit lands were the ancestral property of the contending parties. 9. Upon a careful perusal of the materials on record, it would appear that the Plaintiff-Respondent could not produce any basic document to prove that his father was the owner of half of the suit lands as correctly held by the trial court. But then the other secondary documents, Ext. 9. Upon a careful perusal of the materials on record, it would appear that the Plaintiff-Respondent could not produce any basic document to prove that his father was the owner of half of the suit lands as correctly held by the trial court. But then the other secondary documents, Ext. 1, showing apportionment of compensation amount for two gandas of land acquired by the State Government in 1959 has no bearing on the suit lands, which have been recorded later under the TLR & LR Act exclusively in the name of the Appellants. It is absurd to suggest that as two gandas of land were owned by the brothers, the entire lands of that jote should also be owned by them equally. I have already noted above that there may be different owners of lands of the same jote and one kani of such lands of Jote No. 359 was purchased by Haricharan Das by Ext. A. The second document also does not equally prove the ownership of Manmohan Roy by itself. This is a repurchase deed in favour of Manmohan Roy and Lalmohan Roy, but it refers to the lands falling under Jote No. 136. No land of Jote No. 136 is admittedly the suit land. Again, Ext. 2 series are two revenue receipts in respect of lands, which again appertain to Jote Nos. 82 and 136 and for that reason, such lands cannot be identified with the suit lands, which admittedly appertain to Jote Nos. 357 and 359. 10. Mr. Bhattacharjee firstly placed reliance on a decision of the Supreme Court in Ambika Prasad Thakur v. Ram Ekbal Rai AIR 1966 SC 605 submitting that the Plaintiff-Respondent must prove his own case that he is the owner in equal share of the suit lands before asking for partition and that even if the Defendants-Appellants at any stage made admission, that would not pass the title. In para 30 of that judgment the Apex Court held that title cannot pass by mere admission. In order to derive support for his submission that the learned courts below committed serious error for placing reliance on the document of apportionment of compensation money between the two brothers, Manmohan Roy and Lalmohan Roy in the year 1959 for holding that they were in equal share of the entire jote, Mr. In order to derive support for his submission that the learned courts below committed serious error for placing reliance on the document of apportionment of compensation money between the two brothers, Manmohan Roy and Lalmohan Roy in the year 1959 for holding that they were in equal share of the entire jote, Mr. Bhattacharjee refers to the decision of the Supreme Court in Ramrati Kuer v. Dwarika Prasad Singh AIR 1967 SC 1134 . It has been held by the Apex Court in para 8 of that judgment that compensation paid in part to the widows of that case would not necessarily establish their title. This decision has been rendered in the facts and circumstances of that case. It goes without saying that though compensation it document may indicate ownership, it will indicate ownership of the acquired land, not the other lands. Ext. 1 is the document of apportionment of compensation money for only two gandas of land and this document cannot be explained or expanded to include other lands of the same jote for holding that the two brothers were the owners of the entire lands. 11. In order to counter the submission of Mr. Deb that it is not a situation calling for interference in second appeal when the two courts below have arrived at a concurrent finding in favour of title of the Plaintiff-Respondents in the suit lands, Mr. Bhattacharjee placed reliance on Ishwar Dass Jain v. Sohan Lal AIR 2000 SC 426 . In para 11 and 12 of that judgment, the Apex Court explained two Situations in which interference with the findings of fact is permissible. The first one is when material or relevant evidence was not considered, which, if considered, would have led to an opposite conclusion. The second situation in which interference is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence, which, if omitted, an opposite conclusion was possible. These principles have been laid down in earlier decisions of the Supreme Court in Dilbagrai Punjabi v. Sharad Chandra AIR 1988 SC 1858 and in Srichand Gupta v. Gulzar Singh AIR 1992 SC 123 . In the present case, the courts below did not consider the important document (Ext. These principles have been laid down in earlier decisions of the Supreme Court in Dilbagrai Punjabi v. Sharad Chandra AIR 1988 SC 1858 and in Srichand Gupta v. Gulzar Singh AIR 1992 SC 123 . In the present case, the courts below did not consider the important document (Ext. C-1), which is a land dakhila, issued by Hem Chandra Debbarma in favour of Lalmohan Roy showing him a joteder of certain lands of jote No. 359 mentioned therein. This document should have been taken into consideration at it clearly shows that Lalmohan Roy alone was the joteder of certain lands of Jote No. 359 mentioned therein. This document was issued long before TLR & LR Act, 1960 came into force. There is absolutely no discussion on this document either by the trial court or by the first appellate court. Ext. C series include revenue receipts issued in the name of Lalmohan Roy and these two documents were followed by Ext. A series, which are two parchas showing Jote No. 357 and 359 and the plots, which are admittedly the suit lands. Ext. B series are the finally published khatians in the name of the Appellants showing the suit lands. Exts. C-1 and C-2 highlight how Lalmohan Roy was the owner of the suit lands and even though the sale deed by which he purchased the land could not be produced by his successors, these documents showing him as joteder cannot be treated as invalid for the purpose of deciding his title when no better title in favour of the Plaintiff-Respondent could be produced. Non consideration of these documents along with the records of right is the reason for the courts below to arrive at a wrong finding and, therefore, this is a situation, which certainly calls for interference. 12. The second situation in which interference can be made, according to the Apex Court, is a situation when finding has been arrived at by placing reliance on inadmissible documents. In the case in hand, the courts below placed reliance on Exts. 1, 2 and 3 series, which are de hors the context, as evidently they do not relate to the suit lands at all. They refer to lands of different jotes, the Jote Nos. 82 and 136, when admittedly the suit lands appertain to Jote Nos. 357 and 359. Ext. 1, 2 and 3 series, which are de hors the context, as evidently they do not relate to the suit lands at all. They refer to lands of different jotes, the Jote Nos. 82 and 136, when admittedly the suit lands appertain to Jote Nos. 357 and 359. Ext. 3 being the document showing apportionment of compensation money is again related to the land measuring two gandas, which is not a part of the lands of Khatian No. 2572, which are the suit lands. 13. Thus, on the principles laid down in the above decision of the Apex Court, the facts of the present case, if placed, it would appear that this is a just case where both the situations are present for interference. 14. Mr. Bhattacharjee strenuously argues that the Plaintiff-Respondent miserably failed to prove his case and he raised a claim of half share of the suit lands on totally inadmissible evidence. Thus the burden of proving his title could not be discharged by him. As regards on whom the burden of proof lies, Mr. Bhattacharjee placed reliance on the decision of this Court in R.K. Madhuryyajit Singh v. Takhellambam Abung Singh AIR 2001 Gau 181 . It has been held in para 16, thus: 16. On whom the burden of proof lies can be ascertained by taking note of the fact as to which of the parties would/will succeed if no evidence is adduced/given on the either side. The burden rests on the party who would fail if no evidence at all is adduced. The burden of establishing the case rests upon the party who essentially asserts positively the issue raised. This burden remains unchanged and never shifts under any all circumstances, as clearly indicated in Section 101 of the Act, 1872. The aforesaid rule pertains to the burden of proof as a matter of law and pleading. The other aspect of the burden of proof is the burden of adducing evidence. The burden of proof in this respect may shift throughout the trial. The distinction between the burden of proof as a matter of law and pleadings to that of adducing evidence, is a matter or prime importance. As alluded above, the Plaintiffs came for declaration of their title and, therefore, it was for the Plaintiffs to establish their title affirmatively. The burden of proof in this respect may shift throughout the trial. The distinction between the burden of proof as a matter of law and pleadings to that of adducing evidence, is a matter or prime importance. As alluded above, the Plaintiffs came for declaration of their title and, therefore, it was for the Plaintiffs to establish their title affirmatively. Where a Plaintiff asks for a declaratory decree, he/she must prove his/her title and it cannot take advantage of the weakness of the Defendants Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanesius AIR 1954 SC 526 . 15. Mr. Deb, on the other hand, sought support for his submission that record of rights cannot be presumed to be correct from the decision of the Apex Court in Sita Ram Bhau Patil v. Ramchandra Nago Patil AIR 1977 SC 1712 . In para 20, the Supreme Court held, thus: 20. With regard to the record of rights counsel for the Appellant said that presumption arises with regard to its correctness. There is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it also appears that the record of rights have reference to the mutation entry that was made by the Circled Officer on 30th January, 1956. Counsel for the Respondent rightly contended that no presumption could arise for two principal reasons. First, the oral evidence in this case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs and, second, no notice was ever given to the Respondent with regard to mutation proceedings. Therefore, the Respondent is right in contending that no presumption can validly arise from the record of rights. This decision has no application in the present case, particularly for the reason that no entry in the record of rights could be shown to be correct. 16. In Vishwa Vijay Bharati v. Fakhrul Hassan AIR 1976 SC 1485 , it has been held that the entries in the revenue record ought to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. 16. In Vishwa Vijay Bharati v. Fakhrul Hassan AIR 1976 SC 1485 , it has been held that the entries in the revenue record ought to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. I fail to understand how this decision in any way helps the Respondents herein as it could not be shown that the finally published khatian was fraudulent or forged document. The other decisions relied by Mr. Deb, I have perused and I do not find their relevancy in the context of the present case and, therefore, I find no reason to trouble myself with recital of those decisions. 17. For what have been discussed and observed above, this Second Appeal is found to have merit and should be accepted. Accordingly, this second appeal is allowed setting aside the judgment and decree of the trial court as affirmed by the first appellate court. Consequently, the suit filed by the Plaintiff-Respondent stands dismissed with cost. Appeal allowed.