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2006 DIGILAW 703 (CAL)

SABIRUDDIN ALIAS BHADDU v. SABRATI ALIAS SK. LALU

2006-11-15

PRATAP KUMAR RAY

body2006
Before Mr. Justice Pratap Kumar Ray, J. ( 1 ) CHALLENGING the judgment and decree passed by learned 1st Court of Additional District Judge, Midnapore on 15th September, 2000 and 9th november, 2000 (as per date of signature) respectively in Title Appeal no. 45 of 1996 affirming the judgment and decree passed by learned munsif, 1 st Court at Midnapore on 3lst January, 1996 and on 19th February, 1996 (as per date of signature) respectively in Title Suit No. 226 of 1989, this second appeal was preferred by the principal defendant, which was admitted for hearing under Order 41 Rule 11 of the Civil Procedure Code by the order dated 19th June, 2003 passed by Division Bench (Coram: d. K. Seth and R. N. Sinha, JJ.) (as their Lordships were at the material time) by framing the following substantial questions of law for adjudication:- " (1) Whether non-joinder of three co-sharers out of six co- sharers in the property all being necessary parties is hit by the principle of the proviso to Order 1, Rule 9 of the Code of Civil procedure in a suit for declaration of title and injunction where there was no finding as to partition of the suit property though partial partition was alleged by virtue of a deed, the interpretation where of did not lead to a partition to render the remaining three co-sharers not joined as parties as property but not necessary parties. (2) Whether the suit is hit by Section 34 of the Specific Relief act in the absence of any prayer for partition in respect of a joint property seeking the declaration and injunction as against same of the co-sharers without making the other co-sharers parties to the proceedings. " ( 2 ) THIS appeal has been contested by the plaintiff/respondent of the suit. Fact of the plaintiffs' case: ( 3 ) THE suit property measuring 0. 0325 decimal of land out of 0. 13 decimal of land was allotted in favour of the plaintiff in terms of the registered deed of partition being No. 5741 dated 11th July, 1989, wherein the plaintiff of the suit, the principal defendant and the proforma defendants were parties. In the partition deed, suit property was mentioned as 'ga' schedule property. The principal defendant No. 1 and proforma defendant no. 2 got 0. 0325 decimal and 0. In the partition deed, suit property was mentioned as 'ga' schedule property. The principal defendant No. 1 and proforma defendant no. 2 got 0. 0325 decimal and 0. 0650 decimal of land respectively out of said joint property measuring 0. 13 decimal of land and their portions were demarcated as Schedules 'kha' and 'ka' respectively of the registered partition deed. On the suit land. e. on the 'ga' schedule land in the northern and eastern portion all on a sudden defendant No. 1 started to construction, which despite protest since was not stopped, the suit was filed praying for declaration of right, title, interest, possession and permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiff over the suit property and necessary direction to remove the illegal construction as made by the defendant No. 1. Immediately on filing of the suit on 12th September, 1989, to identify the nature of construction, the plaintiffs' prayer for local inspection was allowed and the local inspection was held on 31st December, 1989. ( 4 ) THE learned Advocate Commissioner submitted report, which was accepted by the learned Trial Court and in the report it was mentioned that 5 inch wall was raised by earth mortar and 10 inch pillars also were raised but house was not completed but only a structure of shed with construction of bamboo was fitted. The Commissioner also noticed that barbed wire fencing as were in the north of the suit land was removed by defendant No. 1, as alleged. It was further transpired from the Commission report that on the north of the suit land there is house of defendant No. 1 and the boundary wall of the defendant No. 1. On the southern side of the suit land there is a boundary wall of proforma defendant No. 2. The sketch map as submitted supported the plaintiffs' case about the deed of partition as executed in July, 1989 and registered on 11th July, 1989. The plaintiffs allotted portion is in between the portions of defendant Nos. 1 and 2. Case of the Defendant: ( 5 ) THE principal defendant No. 1 contested the suit against whom plaintiff asserted a positive case of illegal construction encroaching the land of the plaintiff. The defendant No. 1 in the written statement contended that property originally was of one Masudannessa Bibi, the first wife of Sk. Basir. 1 and 2. Case of the Defendant: ( 5 ) THE principal defendant No. 1 contested the suit against whom plaintiff asserted a positive case of illegal construction encroaching the land of the plaintiff. The defendant No. 1 in the written statement contended that property originally was of one Masudannessa Bibi, the first wife of Sk. Basir. After death of Masudannessa, her one son, two daughters and the husband inherited the property. Sk. Basir, the husband sold out his 1/4th share by registered deed of sale dated 26th may, 1958 to Sk. Asir and Sk. Biku, the sons of 2nd wife of Sk. Basir. Naimuddin son of Masudannessa also transferred his1/4th share to the plaintiff and defendant No. 1 by two separate registered deeds of sale dated 12th May, 1958. The two daughters of Masudannessa sold their respective shares to Naimuddin. Hence, Naimuddin got half share of the property left by Masudannessa and he gifted his share by oral heba. By this process, the defendant No. 1 got 5/8th portion. e. 10 Ana share in the joint property and constructed his dwelling house. Sk. Asir gifted 1/8th share by deed of gift on 20th December, 1989 to one Sk. Monglu, son of defendant No. 1. It was the case of the defendant that the partition deed registered on 11th July, 1989 was illegal, null and void as the same was procured by the plaintiff by practicing fraud, undue influence, threat, coercion etc. The defendant asserted that he did not execute the partition deed voluntarily and it was a paper transaction. It was the defendant's case further that all the co-sharers were not made parties. ( 6 ) ON the basis of the pleadings of the parties, learned Munsif framed the following issues:- " (i) Is the suit maintainable in its present form? (ii) Has the plaintiff any cause of action or right to sue. (iii) Is the plaintiff entitled to a decree as prayed for? (iv) To what other reliefs if any is the plaintiff entitled? findings of Trial Court: ( 7 ) LEARNED Munsif by the judgment and order aforesaid held that defendant failed to prove his defence case that he did not execute the partition deed voluntarily and it was outcome of undue influence and coercion. (iv) To what other reliefs if any is the plaintiff entitled? findings of Trial Court: ( 7 ) LEARNED Munsif by the judgment and order aforesaid held that defendant failed to prove his defence case that he did not execute the partition deed voluntarily and it was outcome of undue influence and coercion. On analyzing the evidence on record as produced by the plaintiff and the defendants, learned Trial Court further held that in the written statement, deed of partition was not under challenge and defendant did not take any step to cancel the partition deed. The local inspection report was relied upon and on the basis of the oral and documentary evidence on record; accordingly, the Court held that there was no evidence to this effect that prior to execution of the partition deed, the defendants were in possession of the suit property. Learned Court further held that the defendants illegally entered into the suit premises and started construction. So far as the share of the parties are concerned as both the parties had set up the case that the property originally belonged to Masudannessa bibi and accepted the different transfers before execution of the partition deed in between the parties, which culminated to their respective shares, the suit was not defective for defect of non-addition of any necessary party as there were no other co-sharers, save and except the plaintiff and defendants of the suit. With this finding, learned Trial Court decreed the suit in favour of the plaintiff by declaring plaintiffs' right, title, interest and possession over the suit property. Defendants were permanently restrained from disturbing the plaintiffs' peaceful possession over the suit property and defendant No. 1 was directed to remove illegal construction as constructed upon the suit land within three months from the date of the order, failing which plaintiff would be at liberty to remove the same. 1st Appeal: ( 8 ) PRINCIPAL defendant No. 1 preferred an appeal registered as Title appeal No. 45 of 1996. Before the 1st Appellate Court, the defendant no. 1st Appeal: ( 8 ) PRINCIPAL defendant No. 1 preferred an appeal registered as Title appeal No. 45 of 1996. Before the 1st Appellate Court, the defendant no. 1/appellant took three grounds, namely, (i) partition deed dated 11th july, 1989 was vitiated by fraud, coercion, duress and never was acted upon; (ii) suit was bad for defect of parties as other co-sharers of the suit plot were not brought on record, and (iii) suit was hit by Section 34 of specific Relief Act as the plaintiff was out of possession and no prayer was made for recovery of possession. ( 9 ) LEARNED 1st Appellate Court discussed all the said points and concluded his decision against the appellant and thereby dismissed the appeal. ( 10 ) SO far as point No. (i) that the partition deed never was acted upon and it was vitiated by fraud, coercion and duress, the 1 st Appellate court held to this effect on analyzing the evidence on record that the plaintiff proved the execution of the partition deed and valid registration by producing the witnesses, namely, the deed writer and the witnesses of the deed who are all known to the parties being resident of the same area and accordingly confirmed the finding of the learned Trial Court. ( 11 ) SO far as the point No. (ii), the 1st Appellate Court on issue of defect of parties as alleged for non-adding other co-sharers as the party of the suit, held that as the property belonged to Masudannessa Bibi originally and as per law of inheritance the respective parties, who inherited property, transferred their shares and ultimately the plaintiff and the defendants became the shareholders, which crystallized by the partition deed on separate identification of the respective shares and plots, there was no merit on the ground as alleged. It was held by the 1st Appellate court that from the partition deed (Ext. 1), Sk. Asir from whom it was alleged that one Sk. Monglu acquired 1/8th share, it appeared that he had already relinquished his title and possession in favour of the parties to the partition deed and there was clear recital in respect of such verbal and amicable gift by Sk. Asir in their favour and accordingly defendant no. 1 was estopped under Section 115 of the Evidence Act to raise any question about oral heba in favour of Sk. Monglu. Asir in their favour and accordingly defendant no. 1 was estopped under Section 115 of the Evidence Act to raise any question about oral heba in favour of Sk. Monglu. lt was further held that the transfer of share to Sk. Monglu, the son of defendant No. 1 by Sk. Asir by registered deed of gift on 20th December, 1989 was admittedly executed after filing of the suit. e. 12th December, 1989 and accordingly said transfer as best could be considered as acquisition of the title covered under doctrine of lis pendency. With that view, the 1st appellate Court held that Sk. Asir had no title in the suit property left before the alleged gift to Sk. Monglu and defendant No. 1 was estopped to challenge such fact in view of the recital of the deed, wherein the Sk. Asir relinquished all his right, title and interest over the un-partition property in favour of the parties to the partition deed. On analyzing the evidence on record, the 1st Appellate Court held that the daughters begotten in wedlock with Saidan Bibi, the second wife of Sk. Basir, got no share in the suit property either by inheritance or by any transfer deed. Hence, they were not at all the proper and necessary parties. With that finding, the court held that the suit was not defective for non-joinder of all the cosharers as there were no other co-sharers except the three persons, namely, plaintiff and two defendants. ( 12 ) SO far as the point No. (iii) about applicability of Section 34 of the Specific Relief Act, the 1st Appellate Court held on considering the evidence of local inspection submitted by learned Advocate Commissioner, a respectable member of the Bar, that the structure was recently constructed within one day from the date of filing of the suit and having regard to the demarcation of the different boundary as discussed in the report in respect of the property under possession of the different parties of the suit and on analyzing the oral evidence, the Court held that the defendant No. 1 never was in possession of the suit property and as such section 34 of the Specific Relief Act was not an embargo. Learned 1st appellate Court also discussed that though at one point of time in crossexamination the plaintiff stated that defendant No. 1 was possessing the suit land but such deposition taking into account of entire oral evidence of parties and the report of local inspection, could not be considered as factum of dispossession to attract embargo under Section 34 of the specific Relief Act. The 1st Appellate Court held that the possession does not constitute a simple threat to possess or an effort to make a structure on the suit land. The local inspection report since was squarely supported the case of the plaintiff, the Court accordingly held that mere declaration of title and a permanent mandatory injunction was legal and valid and suit accordingly was not barred under Section 34 of the Specific Relief Act. Argument before this Court: ( 13 ) IN the second appeal the substantial question of law as framed. already quoted. The question No. (1) about non-joinder of three co-sharers out of six co-sharers it appears from the records, namely, the judgments under appeal that the said point was discussed in thread bare by both the courts below who on the basis of the oral and documentary evidence held that partition deed was properly executed and registered in between the co-sharers and save and except the parties of the suit, there were no other co-sharers. From the findings of both the Courts below it appears that the daughters begotten in wedlock with Sk. Basir and his second wife never acquired any title over the property either by inheritance or by way of any transfer deed in their favour. About Sk. Monglu's acquisition of the property, both the Courts below relied upon the recital of the partition deed, wherein Sk. Asir relinquished his right, title and interest, if any, over the un-partitioned property in favour of the parties to the partition deed and applying the principle of estoppel under Section 115 of the Evidence Act, the 1st Appellate Court rightly held that the defendant No. 1 was debarred to raise that question of fact as same was not within the domain of estoppel on statute but estoppel on fact. 1st Appellate Court further rightly held that the deed of gift as executed subsequent to filing of the suit in favour of Monglu was attracted by the doctrine of lis pendency and accordingly monglu never was a necessary party in the proceeding. Since both the courts below came to a concurrent findings of facts rightly by analyzing the oral and documentary evidence so far as identification of the co-sharers of un-partitioned property who are only the parties of the partition deed, this Court sitting in the second appeal jurisdiction is afraid to interfere with such concurrent findings of fact. Hence, the question as has been framed as substantial question of law, as per reading of this Court is not at all a substantial question for adjudication. The point accordingly answered against the appellant. ( 14 ) SO far as the second point of substantial question of law as framed, namely whether the suit was barred under Section 34 of Specific relief Act in absence of any prayer for recovery of possession and partition of the joint property seeking declaration and injunction against some of the co-sharers without making them a party is also co-related with question no. (i ). In view of the findings of fact of both the Courts below that there are no other co-sharers in respect of the property as was partitioned under the partition deed, save and except the plaintiff and the defendants by discussing the issue, which is failing within the domain of factual matrix and in view of the settled law that 1st Appellate Court is the last Court of adjudication and determination of the fact, the question as framed as substantial question of law, in view of the findings of this Court, is not at all a substantial question. ( 15 ) IT is a settled law that a question would become a substantial question of law if and only if, a question, which was not precisely settled by law of the land or a binding precedent and must have a material bearing on the decision of the case. Reliance may be placed to the judgment of three Judges Bench passed in the case Santosh Hazari v. Purushottam tiwari, reported in 2001 (3) SCC 179 . Reliance may be placed to the judgment of three Judges Bench passed in the case Santosh Hazari v. Purushottam tiwari, reported in 2001 (3) SCC 179 . Furthermore, it is a settled law that a concurrent finding of facts by both the Courts below could be interfered with by the High Court exercising jurisdiction under Section 100 of the civil Procedure Code when and only when both the Courts below concurrently erred in not appreciating the oral and documentary evidence properly. Reliance may be placed to the judgment passed in the case ramlal and Anr. v. Phagua and Ors. , reported in 2006 (1) SCC 168 . In the instant case there is no such materials to interfere with concurrent findings of facts, namely, that there were no other co-sharers, save and except the plaintiff and defendants of the suit by analyzing the oral and documentary evidence of the parties and issue of dispossession as alleged. ( 16 ) REAPPRAISAL on evidence on record as was crystallized in a legal finding by concurrent finding of facts of both the Courts below cannot be done by Second Appeal Court under garb of "substantial question of law" under Section 100 of the Civil Procedure Code. Reliance may be placed to the judgment passed in the case Rajeshwari v. Puran Indoria, reported in 2005 (7) SCC 60 . ( 17 ) THE embargo under Section 34 of the Specific Relief Act on scrutiny of the evidence-on-records was answered against the present appellant by the 1st Appellate Court and this Court is not finding any illegality in that finding to interfere with. ( 18 ) HAVING regard to such State of affairs and relying upon the judgment passed in the case C. Mohammad Yunus v. Syed Unnissa and ors. , reported in AIR 1961 SC 808 , this Court is of the view that the suit was not barred under Section 34 of the Specific Relief Act. ( 19 ) CONSIDERING all aspects and the aforesaid finding, this Court accordingly is not finding any merit in this appeal to interfere with and the substantial questions of law as framed are not at all any substantial question of law on the reflection of the settled judgments of the Apex court as already referred to. Hence, appeal stands dismissed. Judgment and decree under appeal stand confirmed. Hence, appeal stands dismissed. Judgment and decree under appeal stand confirmed. Time to remove illegal construction as passed by learned Trial Court, is extended to two months more from this date. All interim orders stand cancelled. On the facts of the case no order as to costs. Lower Court record be send back forthwith. Later- Let xerox certified copy of this judgment, if applied for, be given to the learned Advocates appearing for the parties expeditiously.