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2008 DIGILAW 532 (CAL)

Subodh Chandra Mondal v. Prakash Chandra Mondal

2008-05-13

L.NARASIMHA REDDY

body2008
Judgment :- (1). THIS appeal has been preferred by the defendant/appellant being aggrieved by and dissatisfied with the judgment and decree passed by learned Civil judge, (Senior Division), Uleberia in Title Appeal No. 14 of 2001 affirming the judgment and decree passed by learned Civil Judge, (Junior Division), uluberia in T. S. No. 375 of 1987. (2). THE case of the plaintiff/respondent, in short, is that ka schedule property originally belonged to Sk. Md. Ali Khan and others. Satish Chandra acharya took settlement of the said property from Md. Ali Khan and started residing thereon by constructing dwelling house. Sufal Chandra jana purchased two decimals of property i. e. kha Schedule property from satish Chandra Acharya and thereafter Sufal Chandra transferred the same to one Parulbala Ghosh. Since purchase Parulbala started residing on the said property and transferred the kha schedule property including the dwelling house to one Motleb Mollah at a consideration of Rs. 2,000/ on 16th Baisakh 1373 B. S. Abdul Motleb Mollah while in possession of the kha schedule property along with the dwelling house, sold the same to the plaintiff by a registered deed for a consideration of Rs. 2,500/- on 13. 02. 1970. The kha schedule property is the self acquired property of the plaintiff and the same has been purchased by the plaintiff out of his own income. The plaintiff was all along a service holder. The plaintiff after demolishing the dwelling house standing on the kha schedule property, constructed a new building having five rooms at the ground floor and three rooms at the first floor and started residing there with family. (3). THE plaintiff is the youngest son of his father. The eldest son started business in Calcutta 35 years ago and used to live there. The second son was married about 26 years ago and started residing in separate mess in village Chengile in a rented house. The plaintiff has no relation with the defendant, for the last 26 years. On being requested by the defendant, the plaintiff allowed him to stay in ga schedule property on 25th Agrahayan 1380 B. S. for four years only with the condition that within that period the defendant will seek suitable accommodation elsewhere and vacate the ga schedule property. The plaintiff did not demand any charges for such stay of the defendant in the ga schedule property. The plaintiff did not demand any charges for such stay of the defendant in the ga schedule property. As such, the defendant was a mere licensee in ga schedule property and has no other right to stay or live there. After the expiry of four years, the plaintiff asked the defendant to vacate the ga schedule property, but to no effect. Upon revocation of such licence, the defendant has become a trespasser and the plaintiff instituted the suit before the learned Trial court for recovery of possession and other reliefs in ga schedule property. (4). THE defendant/appellant contested the suit by filing written statement contending, inter alia, that the property was purchased from the joint fund of three brothers and the same was not the self-acquired property of the plaintiff. The three brothers constructed two storied pucca building over the suit property and started residing there as joint owners. (5). THE learned Trial Court upon consideration of the evidence on record decreed the suit. Being aggrieved by the said judgment and decree passed by the learned Trial Court, the defendant preferred appeal and the learned first Appellate Court dismissed the appeal affirming the judgment and decree passed by the learned Trial Court. Being aggrieved by the judgment and decree passed by the learned First Appellate Court, the defendant has preferred the second appeal. (6). IN this appeal, the substantial question of law has been formulated as hereunder: "whether on the fact of the admission of P. W. 1 that the P. W. 1 was married in 1981 and till then he used to take food in the joint mess of the defendants, could any separation of the family and that the transaction of the money was not borne from the joint fund of the three brothers be presumed and the property purchased in 1970 could be believed to have been purchased by his own fund and thus in the absence of any proof with regard to the separation of the jointness, the presumption of continuance of the jointness of the joint family could be overlooked and the relief sought for in the property could be granted to the plaintiff. " (7). THE learned Advocate appearing on behalf of the appellant submits that the jointness is the presumption and there is admission by P. W. 1 in the cross-examination that he used to take food in the joint mess of defendant. " (7). THE learned Advocate appearing on behalf of the appellant submits that the jointness is the presumption and there is admission by P. W. 1 in the cross-examination that he used to take food in the joint mess of defendant. It is submitted that there are ration cards to prove that all the members of the family used to live together. It is contended that there was joint fund and the expenses for constructing building were also met from the said joint fund and the defendant being the elder brother could not demand money receipt from the plaintiff i. e. the younger brother. It is submitted by the learned Counsel for the appellant that the joint mess connotes the existence of joint property. It is contended that the elder brother might have been living in Calcutta, but, he did not come to claim the share from the joint property. It is contended that since the defendant has been residing without making any occupational charges, it is sufficient to prove that the defendant has been living there in his own right. The learned counsel contends that there is no document regarding permissive possession/licence and in view of the totality of evidence, it would be clear that the property was purchased and the building was constructed out of the fund of the joint family and the suit may be sent back on remand to the learned Trial Court to decide the issues afresh. (8). THE learned Counsel appearing on behalf of the respondent submits that the eldest brother has been residing in Calcutta and the joint living does not signify the existence of joint fund. It is contended that the defendant being the elder brother has been living with permissive occupation in the property. The learned Counsel submits that the concept of joint family as available under the Mitakshara Law will not be applicable under the dayabhaga School of Hindu Law. It is contended that the plaintiff has been enjoying electricity, but, the defendant is not enjoying the same. It is submitted that the D. W. 3 has stated in the evidence that the eldest brother has been residing in Calcutta and the plaintiff purchased the property in 1972; that the defendant started residing with the father till the death of the father in 1980 in a rented house. It is submitted that the D. W. 3 has stated in the evidence that the eldest brother has been residing in Calcutta and the plaintiff purchased the property in 1972; that the defendant started residing with the father till the death of the father in 1980 in a rented house. It is further contended that the D. W. 3 has stated that the plaintiff started residing in the suit property from the year 1972. It is submitted that there is no existence of any nucleus and there was no existence of the joint fund. It is contended that as per the evidence of D. W. 3 there is no paper to show that the three brothers purchased the property. (9). EVIDENTLY, the deed in question i.e. exhibit -2 stands in the name of the plaintiff. So, the presumption will be that the consideration money was paid by the plaintiff, unless it is proved that there was existence of joint fund of the three brothers and out of it the consideration money was paid. The learned Counsel of the appellant emphasizes on the point that there was admission by P. W. 1 in the cross-examination that he used to take food in the joint mess. Now, whether the said statement of P.W. 1 amounts to admission or not, that depends on the pleadings and the totality of evidence. In the pleadings it has been categorically averred that the suit property was purchased by the plaintiff out of his own fund and that he is a service holder. I have carefully gone through the evidence adduced by both the parties and I find that there is no evidence to show the existence of nucleus of the alleged joint family. In order to decide the existence of joint fund in the alleged joint family, we are to look into the surrounding circumstances. (10). IT appears that the property was purchased in the year 1970. It is in the evidence of D. W. 3 that she has been residing in Calcutta for the last 40 years; that her father-in-law died in the year 1980 and the disputed house was completed in 1972. It is also in her evidence that Subodh resided with his father till his death in the rented house. She has further stated that the plaintiff has been residing in the disputed house from the year 1972. It is also in her evidence that Subodh resided with his father till his death in the rented house. She has further stated that the plaintiff has been residing in the disputed house from the year 1972. It is in her evidence that the plaintiff works in a Jute Mill. She has stated that there is no paper to show that the three brothers purchased the suit property. It is in her cross-examination that the electric connection is in the name of Prakashbabu. In the cross-examination she has further stated that Subodhbabu was with them in the rented house. (11). IT is in evidence that the plaintiff is a service holder and he had his independent source of income. From the evidence it is clear that the defendant after the purchase of the property used to reside separately with the father till 1980. These are the circumstances which do not come in the aid of the case of the defendant from the standpoint of preponderance of probability. Mere taking food in the joint mess as stated by P. W. 1 does not, if so facto, prove the existence of the joint fund. Therefore, the said stray statement made by P. W. 1 in cross-examination cannot be said to be an admission as to be existence of joint fund or the joint property. From the pleadings and having regard to the totality of evidence of P. W. 1, the said isolated statement of P. W. 1 cannot be treated as the admission as to the existence of joint fund or the joint family. From the evidence on record it is clear that the suit property is the self-acquired property of the plaintiff. (12). IN view of the aforesaid discussion, I do not find any ground to interfere with the findings of the learned Appellate Court. Both the learned Courts below rightly decided the matter in issue. The judgment and decree under appeal are affirmed. The appeal is dismissed. The defendant/appellant is directed to deliver vacant possession of the suit premises i.e. ga Schedule property to the plaintiff within two months from this date, failing which the plaintiff/respondent will be at liberty to recover Khas possession by executing the decree. There will be no order as to costs. (13). LET a copy of this judgment along with the L. C. R. be sent to the learned court below immediately.