Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 383 (GAU)

Purna Chandra Mahanta v. Deb Kanta Mahanta

2007-05-30

AMITAVA ROY

body2007
JUDGMENT Amitava Roy, J. 1. This appeal projects a challenge to the judgment and order dated 11.8.1994 and the decree dated 18.8.1994 passed by the learned District Judge, Morigaon in Title Suit No. 45(M)/1992 decreeing the suit of the original respondent-plaintiff, Dharmeswar Mahanta(since deceased) presently substituted by his heirs and legal representatives. 2. I have heard Mr. D.C. Mahanta, Senior Advocate assisted by Ms. R. Bhattacharjee, Advocate for the appellants and Mr. A.C. Sarma, Advocate for the respondents-plaintiffs. 3. The predecessor in interest of the present respondents plaintiffs named hereinabove instituted Title Suit No. 58(N)/1990 in the Court of the learned Assistant District Judge, Nagaon, against the appellants and others praying for a decree inter alia for declaration of his right, title and interest over the suit land described in schedule 'KA' to the plaint, confirmation of his possession thereof and permanent injunction. He also prayed for a decree for khas possession of any portion of the suit land in the face of the encroachment thereof by the dependent and his consequential dispossession. In the plaint, the heirs and legal representatives of Ghana Kanta Baruah, Someswar Deka and Jyoti Gohain were impleaded as proforma respondents. In addition to the appellants, other heirs of Kamdev Mahanta (since deceased) brother of the original plaintiff and the appellant No. 1 namely, Smt. Jugal Mahanta, Shri Sushil Mahanta, Shri Mukut Mahanta, Smt. Muhini Mahanta, Smt. Minu Mahanta were also impleaded as the contesting defendants. On the creation of the court of the District & Sessions Judge, Morigaon the suit was transferred thereto and was registered as Title Suit No. 45(M)/1992. 4. The pleaded version in the plaint is that the suit land measures one bigha out of 1 bigha 5 lechas covered by Dag No. 1050 of periodic patta No. 754(new) under Morigaon Town Revenue Kissam in the district of Morigaon. Before the settlement survey of 1930-31 it was included in an area of 3 bighas 4 kathas 17 lechas under Dag No. 141, RR No. 100 under Gashbari Kissam of Tatelia Mouza of which Phedela Gohain(since deceased) was the recorded pattadar. On his death, his sons, Jyoti Gohain and Narayan Gohain succeeded him. Before the settlement survey of 1930-31 it was included in an area of 3 bighas 4 kathas 17 lechas under Dag No. 141, RR No. 100 under Gashbari Kissam of Tatelia Mouza of which Phedela Gohain(since deceased) was the recorded pattadar. On his death, his sons, Jyoti Gohain and Narayan Gohain succeeded him. Being in dire need of money they, on 16.1.1941 sold 2 bighas of land therefrom in favour of the Someswar Deka (since deceased), predecessor in interest of the defendant No. 4(ka) to 4(unga) by a registered deed of sale and delivered possession thereof to him. Eventually, Someswar Deka while in possession and enjoyment of said 2 bighas of land, being in financial distress, transferred one bigha therefrom in favour of the original plaintiff Dharmeswar Mahanta by registered sale deed No. 4397 dated 22.5.56 for a valuable consideration of Rs. 1445/- and delivered possession of the conveyed land to him. During the settlement survey of 1968-69, the patta number was altered to 1059 and 1050 under PP No. 754 of Morigaon Revenue Town Kissam. The plaintiff alleged that sometime thereafter the appellant No. 1/defendant No. 1 tried to dispossess him from over 3 lechas of the suit land described in schedule "Kha" of the plaint and also tried to contract a house thereon. As such illegal and uncalled for ventures gave rise to a likelihood of breach of peace, the plaintiff instituted a proceeding under Sections 107/145 Cr.P.C, in the Court of the learned Megistrate at Nagaon which was registered as MR Case No. 528/70. The proceeding was however, dropped on 17.5.1971 and the revision petition No. CM No. 34(N.-2)/1971 preferred before the learned Sessions Judge, Nagaon was also dismissed on 12.8.1971. Both the courts rendered their decisions noticing the claim of the appellant No. 1/defendant No. 1 and others that the land was under joint possession, the same having been purchased from the income of the joint property firm. The plaintiff's version is that the suit land was purchased from his personal income and that on the schedule 'Kha' land he had constructed a thatched house which was given on rent to one Batanu Rajak about three years before the institution of the suit. As the appellant No. 1/Defendant No. 1 after disposal of 145 Cr. The plaintiff's version is that the suit land was purchased from his personal income and that on the schedule 'Kha' land he had constructed a thatched house which was given on rent to one Batanu Rajak about three years before the institution of the suit. As the appellant No. 1/Defendant No. 1 after disposal of 145 Cr. P.C. Proceeding started claiming his right over the suit land, he objected thereto on which the appellants jointly denied his exclusive right, title and interest over the suit land on 2.1.88 and declared their share therein. Their claim having cast a cloud over the plaintiffs right, title and interest in the suit land, the action was initiated. 5. The proforma defendants did not contest the suit. The appellants and Sri Mukut Mahanta son of Late Kamdev Mahanta filed ajoint written statement. They contended inter alia that the suit had been under valued and that it was barred by limitation as well, the plaintiffs earlier suit i.e. TS 46/74 on the same issue having been dismissed on 4.10.74 and the Misc appeal No. 4/74 taken therefrom rejected. They claimed that the suit land was purchased from the joint family fund in the name of the plaintiff he being the eldest brother. They denied that the plaintiff had purchased the suit land from his own income and that he had been in exclusive possession thereof. The appellant No. 1/defendant No. 1 further asserted that Batahu Rajak was his tenant. The answering defendants claimed to be possessing their respective shares in the suit land since 1970. According to them, the suit land along with other ancestral properties were partitioned in the year 1964. They denied the pleaded statement of the plaintiff that the appellant No. 1/defendant No.l had separated from the joint family in the year 1955 and that Kamdev Mahanta even prior to that. They asserted to have spent about Rs. 30,000/- for filling up the low lying area of the suit land before constructing a house thereon. They however, admitted the plaintiffs possession of his portion of the suit land. In the alternative, they also claimed adverse possession of the lands in their occupation since 1970. On the basis of the pleadings, following issues were framed: (1) Is there any cause of action for the suit? (2) Is the maintainable in its present form? (3) Is the suit barred by limitation and adverse possession? In the alternative, they also claimed adverse possession of the lands in their occupation since 1970. On the basis of the pleadings, following issues were framed: (1) Is there any cause of action for the suit? (2) Is the maintainable in its present form? (3) Is the suit barred by limitation and adverse possession? (4) Whether, proper Court fee has been given? (5) Whether, the plaintiff has any right, title and interest over the suit land? (6) What relief, if any, is the plaintiff entitled? 6. Both the parties adduced evidence oral and documentary. The original plaintiff examined himself and four other witnesses, whereas the appellant No. 1/defendant No. 1 testified on oath along with seven others. The witnesses also proved the documents in support of their respective cases. The learned trial court decided the issues pertaining to the cause of action, maintainability and court fee in favour of the respondents plaintiffs. The issues with regard to the limitation and adverse possession were also decided in their favour. 7. The debate before this Court having centered around the decision on Issue Nos. 5 and 7, the reasonings in support of the determination on other issues have not been dilated upon. 8. The learned courts below on an exhaustive analysis of the evidence adduced did not accept the defence plea of partition of the suit land in the year 1964. While recording the said finding, the learned trial court observed that there was no partition deed as well. It was of the view that as the father of the parties was alive in the year 1956 when the suit land was purchased, the transaction ought to have been in his name, the plaintiff not being a karta (manager) of the joint family. It also noticed the absence of any objection by the defendants to the registration of the sale deed in favour of the plaintiff and other essential, legal formalities vis a vis the suit land. It held that the defendants had failed to prove that they had contributed or paid some amount in purchasing the suit land or that there was a amicable partition thereof. It held that the defendants had failed to prove that they had contributed or paid some amount in purchasing the suit land or that there was a amicable partition thereof. On a consideration of the evidence of the plaintiff that he had purchased the suit land from his earnings and the documents proved by him pertaining to the same as well as the steps taken by him for registering his name in the revenue records without any objection of the defendants, the suit was thus decreed. 9. Mr. Mahanta has argued that it being the pleaded case of the appellants/defendants that the suit land had been purchased from a joint family fund in the name of the plaintiff and it being apparent from the evidence of PW1 and DW1 that the joint family had ancestral property and bus business generating an income sufficient to acquire the same, the learned Court below erred on the fundamental principle of law in holding that the suit land had been acquired by the plaintiff from his personal income. This finding having been arrived at by the learned court below on a total not consideration of the pleadings of the parties and the evidence on record more particularly, the admission of the plaintiff regarding the existence of the bus business of the family is perverse, he urged. He contended that under the Hindu Law, through the property held by a member of a joint family need not necessarily be of the family, but if it is admitted or proved that there is a family nucleus generating an income sufficient to purchase the same the burden is on the person who claims the property to be his self achieved. On that touchtone, Mr. Mahanta urged that in face of the evidence of PW1 and DW1 confirming the family bus business and the income therefrom, adequate to purchase the suit land, the learned court below erred in decreeing the suit holding the suit land to be the self purchased property of the plaintiff, though he failed to discharge his burden in law to the said effect. As there is no semblance of evidence to demonstrate as to how the resources were arranged by the plaintiff to purchase the suit land his own, the learned trial court on a consideration of the pleadings of the parties and the evidence on record ought to have dismissed the suit. As there is no semblance of evidence to demonstrate as to how the resources were arranged by the plaintiff to purchase the suit land his own, the learned trial court on a consideration of the pleadings of the parties and the evidence on record ought to have dismissed the suit. The learned Senior Counsel contended that the court below in deciding the suit strayed from the main issue and laid undue emphasis on partition. The adjudication being vitiated by a grave error of law, the impugned judgment and order ought to be interfered with in the interest of justice. Mr. Mahantaplaced reliance on the decision of the Apex Court in [1960] 2 SCR 253, Must. Rukhmabai, Appellant v. Lala Laxminarayan and Ors. Respondents and of this Court in 2006 (J) GLT 515 : (2006) 1 GLJ 594, Jagadish Shah and Ors. Appellants v. Smti. Kailashpatikalwar and Ors. Respondents in support of his submissions. 10. Controverting the above, Mr. Sarma has urged that in absence of any pleading of joint family business or income, from family ancestral land, no evidence to that effect is admissible in law and therefore, the learned court below rightly did not attach any importance thereto. The learned Counsel referring to the evidence of PW 1, plaintiff, maintained that it is apparent therefrom that the suit land had been purchased from his personal earnings and also by raising loan and therefore he had appropriately discharged his burden to prove the same. Referring to the sale deed and the revenue records, Mr. Sarma maintained that the plaintiff had duly proved his right, title and interest in the land and therefore, the findings to the said effect is unassailable. The learned court below having arrived at its conclusions following an extensive consideration of the pleadings and the evidence on record, no interference with the impugned judgment and order is warranted, he urged. 11. The completing arguments have been duly considered. Having regard to the contour thereof, it would be appropriate to be abreast with the law as to the status of a property held by a member of a joint Hindu family. The Apex Court in Mustt. Rukhma Bhai (supra) while recognizing the presumption of jointness of a family governed by Hindu law held against such a postulation whenever a property is held by a member of such family. The Apex Court in Mustt. Rukhma Bhai (supra) while recognizing the presumption of jointness of a family governed by Hindu law held against such a postulation whenever a property is held by a member of such family. It ruled that the burden lies upon the person who asserts that a particular property is of the joint family to establish the same. But if he could prove that there was sufficient joint family nucleus from and out of which, the said property could have been acquired, the burden would shift to the member of the family setting up the claim that it was his personal property to establish that the same had been acquired without any assistance from the joint family property. The above dictum was reiterated by this Court in Jagadish Saha and Ors. (supra) following a comprehensive survey of other judicial pronouncements on the issue. The legal proposition is thus that the presumption in Hindu law that a family is joint, is ipso facto not available vis-a-vis a property held by a member thereof. The initial burden of proof that it is so is on the person who claims it to be joint and if it is either established or admitted that the joint family at all relevant time was in possession of a property producing an income sufficient to acquire the property in question, then the onus shifts on the person who claims it to be his self acquired to prove that it was purchased dehors the family fund. Thus there would be a presumption that such a property is of the joint family if the person asserting it to be so is able to establish a family nucleus yielding enough income to acquire the same and such an inference would subsist till displaced by the person contending otherwise by proving that he had purchased the same exclusively from his resources. 12. The rival contentions therefore have to be tested on the above judicially evolved norms. The plaintiff in his pleading had categorically asserted that the suit land had been purchased from his individual earnings and claimed exclusive right, title and interest therein. The proforma defendants including his vendor did not resist this claim. 12. The rival contentions therefore have to be tested on the above judicially evolved norms. The plaintiff in his pleading had categorically asserted that the suit land had been purchased from his individual earnings and claimed exclusive right, title and interest therein. The proforma defendants including his vendor did not resist this claim. In their written statement, though the contesting defendants had maintained that the suit land had been purchased from the joint family, they did not acknowledge or disclose any nucleus or business generating income sufficient for the transaction. The plaintiff in his evidence proved the sale deed Ext. 3 and claimed to be in possession of the suit land since its purchase. He also proved the revenue paying receipts Ext. 6(1) to 6(5) for the land. He stated that their father had expired in the year 1969. According to him, in 1953, Kamdev Mahanta (since deceased) separated followed by the appellant No. 1/defendant No. 1 in 1955 and that in the same year, formal partition of the parties was effected. Since then, his brother lived separately. He deposed that he used to earn his livelihood from contract works and that he did not seek any assistance from the joint family for his survival. He testified that he purchased the land from his own earnings and also by raising loan from one Marowari gentleman and that he duly liquidated his debts his income. He was unambiguous in stating that at the time of such purchase the brothers were already living separately. He denied the appellant No. 1/defendant No. 1's assertion of being in possession of the suit land for last 35 years. He also denied the contention that the suit land had been purchased from joint family fund and that his name was lent he being the eldest brother in the family. He also denied the suggestion of family partition of the ancestral lands including the suit land in the year 1964. In cross examination, he admitted that there was a bus business in his name which he had sold and an amount of Rs. He also denied the suggestion of family partition of the ancestral lands including the suit land in the year 1964. In cross examination, he admitted that there was a bus business in his name which he had sold and an amount of Rs. 2000/- being a share of the sale proceeds had been paid to the appellant No. 1/defendant No. 1 PW 2, Mukhmal Deka, PW3 Sahadev Das, PW5 Abdul Hira supported the plaintiffs stand that he earned his livelihood from contract works, PW 4, UD Assistant cum District Record Keeper of the office of the Deputy Commissioner, Nagaon amongst others proved the revenue records including copies of Chitha, Jamabandi, etc. demonstrating that plaintiff's name had been mutated in respect of the suit land. 13. DW. 1, Purna Chandra Mahanta, appellant No. 1/defendant No. 1 stated that the plaintiff Kamdev Mahanta and himself were brothers and were separated in the year 1964. In all, 58 bighas of land jointly purchased in the name of the plaintiff Dharmeswar Mahanta was partitioned. He deposed that the suit land had been purchased from the income and earnings from the land and bus business of the joint family. Due to rise in the price of petrol, the bus business was sold out and the price obtained was distributed amongst the three brothers. He also received Rs. 6000/- on that account and like amount was paid to Kamdev Mahanta, the other brother. He deposed that after partition, he and Kamdev Mahanta received 1 Kalha 10 leahas and 1 Katha of the suit land whereupon, he filled in earth and raised a house to be rented out to one Prafulla Mahanta. According to the witness, Kamdev Mahanta after raising loan constructed a house and rented out the same. The witness stated that though the suit land was purchased in the name of the plaintiff he being the eldest brother, other brothers on the partition thereof possessed their shares. In cross examination, DW1 stated that at the time of purchase of the suit land, their father was alive. He admitted that the plaintiff since 1948 was in contract business. He stated that he was present when the negotiation for sale was conducted as well as at the time of drafting of the sale deed. He admitted that he had not raised any objection when the sale deed was registered in the name of the plaintiff. He admitted that the plaintiff since 1948 was in contract business. He stated that he was present when the negotiation for sale was conducted as well as at the time of drafting of the sale deed. He admitted that he had not raised any objection when the sale deed was registered in the name of the plaintiff. He conceded that in terms of the Ext. 1, the suit land was recorded in the name of the plaintiff. He also admitted that though he had raised objection to the mutation of the plaintiff's name, the same was over ruled. He conceded that there was no reference in the written statement that the suit land had been purchased from the funds derived from the ancestral income and bus business. He stated that Kamdev left joint family first and that in the next year he followed the suit. 14. The evidence of DW2 and DW 3 has no bearing on the issue in hand. DW 4, Arun Kumar Hazarika stated about his possession of a plot of land adjacent to the suit land. He stated that in the year 1968 the Lot Mandal came to the land and partitioned the same among the brothers and that they were in possession of their respective shares. This witness therefore introduced a different year for the partition in departure from the pleaded case of the defendants. Apart therefrom, no record of such partition had been proved or exhibited in the suit in support of the said assertion. DW 5, Chandi Mahanta reiterated the factum of partition. He however, conceded that there was no person at the time of delivery of possession of the lands to the defendants. Though he stated that along with him, Samdhan Mahanta, Gopi Mahanta, Deben Mahanta and Bhumi were present, none of them has been examined in support of the partition. DW6, Suraj Singh claimed to have a tea stall under the DW 2, Sushi 1 Mahanta on the suit land for over a decade. DW 7, Ram Das asserted to be a tenant under the said defendant on a part of the suit land for over 12 years. They however, claimed to have constructed their own houses. DW6, Suraj Singh claimed to have a tea stall under the DW 2, Sushi 1 Mahanta on the suit land for over a decade. DW 7, Ram Das asserted to be a tenant under the said defendant on a part of the suit land for over 12 years. They however, claimed to have constructed their own houses. DW 8, Debendra Nath Mahanta though stated that the brothers are separated following a partition about 20 years before the date of possession, he was not aware of the exact area of the suit land or owner of the house constructed thereon. 15. On a scrutiny of the evidence, it is noticeable that except the claim of DW 1 that the suit land had been purchased from the ancestral income and the earnings of the bus business, there is no other material on record evidencing any family nucleus to provide for the said transaction. The written statement as alluded hereinabove is conspicuously silent in this regard. Except disclosing that the suit land had been purchased from joint family fund, it does not contain any averment as to the source thereof. The written statement also does not reveal that the ancestral property claimed to have been partitioned in 1964, stood in the name of the plaintiff being the eldest son of the family. The plaintiff has not been projected either as the manager or karta of the family in the pleading or evidence. 16. Considering the state of the materials on record, I cannot persuade myself to hold that the appellants defendants had been able to discharge their onus of demonstrating a joint family property or nucleus enough to acquire the suit land drawing resources therefrom. A mere acknowledgement of the fact by PW 1 that he had buses in his name and that on the disposal thereof a sum of Rs. 2000/- from the sale proceeds had been paid to the appellant No. 1/defendant No. 1 does not, in my considered opinion, tantamount to his admission of a family bus business, generating income adequate to purchase the suit land. Such a conclusion, having regard to the pleadings of the parties and other evidence on record would be purely inferential and surmised. 2000/- from the sale proceeds had been paid to the appellant No. 1/defendant No. 1 does not, in my considered opinion, tantamount to his admission of a family bus business, generating income adequate to purchase the suit land. Such a conclusion, having regard to the pleadings of the parties and other evidence on record would be purely inferential and surmised. Payment of a share of the sale proceeds of the bus to the appellant No. 1/defendant No. 1 proprio vigore does not unequivocally establish that the bus business was a joint family enterprise and that consequential earnings therefrom comprised a family nucleus sufficient to purchase the suit land. In view of the contradictory averments about the year of family partition discernible from the evidence of the witnesses for the defendants, the trial court's determination against it in 1964 is not misplaced. 17. To the contrary, if the plaintiff's plea of such partition in 1955 is accepted, it would negate the plea of purchase of the suit land from the joint family fund. In addition to the fact that the father was admittedly alive when the purchase was made and that therefore, it is unusual that the transaction would be effected in the name of his son in a family governed by Dayabhaga law, none of the documents on record bears even a remote indication that the suit land had been purchased from the joint family income. The plaintiff in addition to his persistent reiteration that the suit land had been purchased from his personal income and a loan obtained by him had proved all relevant documents including the sale deed to establish that not only the transaction had been effected in his name, he was registered in the revenue records as the pattadar thereof. The revenue paying receipts also substantiate his claim. Estimated on the yardstick of preponderance of probability invocable in a civil proceeding the determinations of the learned court below cannot be impeached as absurd implausible or perverse. In face of the law propounded and the materials available on record, I am of the unhesitant opinion that the impugned judgment and order does not merit any interference in this appeal. The respondents plaintiffs having proved their pleaded case, they are entitled to the decree awarded by the learned trial court. 18. The appeal being without any merit is thus dismissed. The respondents plaintiffs having proved their pleaded case, they are entitled to the decree awarded by the learned trial court. 18. The appeal being without any merit is thus dismissed. The interim order passed earlier staying execution of the decree stands vacated. Prepare the decree accordingly. No costs. Appeal dismissed.