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2007 DIGILAW 109 (CAL)

ASHOKE KUMAR MONDAL v. SASANKA SHEKHAR MONDAL

2007-02-21

MANIK MOHAN SARKAR, SUBHRO KAMAL MUKHERJEE

body2007
MUKHERJEE, J. ( 1 ) BY consent of parties, we take up the hearing of the appeal itself. ( 2 ) THIS is an appeal arising out of a suit for partition. The learned trial Judge by the impugned judgment and decree dated August 30, 2006 dismissed the suit for partition without any order as to costs. The learned trial Judge found, in substance, that the plaintiff miserably failed to prove that he had title in the suit properties. ( 3 ) THE plaintiff instituted the suit for partition contending, inter alia, that the father of the parties to the suit, namely, Lalit Mohan Mondal, since deceased, purchased the suit property under a registered deed of sale dated March 2, 1962 from one Radha Rani Mondal. It is stated that Lalit mohan Mondal died on October 17, 2000 intestate and as his wife died on june 6, 1994, fie left behind him the plaintiff and the defendants as his heirs/heiress and legal representatives. Therefore, the parties to the suit inherited 1/7th share each in the suit properties. ( 4 ) THE defendant Nos. 1, 2 and 3 jointly contested the suit by filing their written statements and one additional written statement. In substance the contesting defendants contended that the plaintiff had no title in the suit properties. It was contended that the property stood vested in the state as the original owner of the suit property did not retain the properties by exercising her option/the State of West Bengal, thereafter, settled the suit properties in favour of the defendant Nos. 1 and 2 by executing two deeds of settlement dated July 2, 1975. The defendant No. 3, however, did not claim any interest in the suit properties. ( 5 ) THE parties went to trial. The plaintiff deposed as the plaintiff's witness No. 1. We have considered his statements made in the crossexamination. We are of the view that he has virtually admitted the case of the defendants. He expressed his ignorance as to whether Radha Rani mondal, the erstwhile owner of the suit properties, retained the suit properties by exercising her option or not. However, he admitted that he knew about the vesting of the suit properties. He admitted that the pattas were executed in favour of the defendant Nos. 1 and 2. He, further, admitted that the defendant Nos. However, he admitted that he knew about the vesting of the suit properties. He admitted that the pattas were executed in favour of the defendant Nos. 1 and 2. He, further, admitted that the defendant Nos. 1 and 2 got the pattas in respect of the suit properties after vesting. He admitted that in the Land Reforms Record of Rights, the names of the defendant Nos. 1 and 2 had been recorded. He admitted that he had not challenged the Order 6 vesting. He stated that probably the defendant Nos. 1 and 2 were paying rents in relation to the suit property. ( 6 ) ALL suits for partition are the suits for declaration of title too. It was for the plaintiff to prove that he had title in the property. He relied upon a deed executed by the erstwhile owner in favour of the father, but he could not show that the said vendor retained the property by exercising her option. On the contrary, the defendant Nos. 1 and 2 relied upon the pattas granted by the State of West Bengal. ( 7 ) MR. Rameswar Bhattacharjee, learned Advocate appearing for the appellant submits that it was for the defendants to prove that the property stood actually vested in the State. ( 8 ) THERE is a statutory presumption under Section 49 of the West bengal Land Reforms Act, 1955, inasmuch as settlement could be made of any land, which was at the disposal of the State Government. ( 9 ) THE pattas were issued in favour of the defendant Nos. 1 and 2. There is nothing on record to show that the vendor of the father of the plaintiff retained the property in khas by exercising her option. ( 10 ) THEREFORE, the learned Trial Judge was justified in holding that the plaintiff has virtually admitted the case of the defendants in the cross- examination. The plaintiff having failed to prove his title in the property, he is not entitled to any decree for partition. The learned Trial Judge was justified in dismissing the suit for partition. ( 11 ) WE, therefore, dismiss the appeal and affirm the judgment and decree passed by the learned Trial Judge. ( 12 ) SINCE the parties are near relations, we direct the parties to bear their respective costs in this appeal. The learned Trial Judge was justified in dismissing the suit for partition. ( 11 ) WE, therefore, dismiss the appeal and affirm the judgment and decree passed by the learned Trial Judge. ( 12 ) SINCE the parties are near relations, we direct the parties to bear their respective costs in this appeal. ( 13 ) IN view of disposal of the appeal, we propose not to make any separate order on the applications, being C. A. N. No. 9035 of 2006 and c. A. N. No: 550 of 2007, filed by the plaintiff/appellant and by the defendants/respondents respectively. Those applications are, also, disposed of without any order as to costs. Xerox certified copy of this judgment and decree, if applied for, be given to the learned Counsel for the parties expeditiously. .