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2010 DIGILAW 1178 (CAL)

Bulu Saha v. Bharati Biswas

2010-09-10

TAPAN KUMAR DUTT

body2010
JUDGMENT TAPAN KUMAR DUTT 1. THIS Court has heard the Learned Advocates for the respective parties. 2. The plaintiff/respondent No.1 filed a suit against the defendants and the proforma-respondent No.2 for recovery of khas possession of the suit property by evicting the defendants from the said property. The plaintiffs case was that the plaintiff had purchased the suit property from one Mritunjoy Biswas by a registered deed of sale dated 05.07.1991; originally, one Satkari Biswas was the owner of the suit property and his name was recorded in the C.S. and R.S. records of right; the defendants do not have any right, title in the suit property and they dispossessed the plaintiff from the suit property on 06.02.1991 and, thereafter, the plaintiff requested the defendants to vacate the suit property but the defendants refused to do so and the plaintiff had to file the suit for declaration of title in respect of the suit property and also for recovery of khas possession of the same by evicting the defendants therefrom. The defendants contested the said suit by filing written statement and denying the material allegations made in the plaint. The defendants alleged that the suit is not maintainable; that Satkari Biswas was the original owner of the suit property and he died leaving behind his 4 sons and 4 daughters and his widow and all such heirs and legal representatives of Satkari Biswas inherited the suit property; the defendants have been possessing the suit property from 18th November, 1985 under permission from one Ajoy Kumar Biswas (son of Satkari Biswas) and that the suit should be dismissed. It may be stated here that Mritunjoy Biswas, as aforesaid, is also one of the sons of late Satkari Biswas. The said suit being Title Suit No. 45 of 1992 came up for hearing when the Learned Trial Court by its judgment and decree dated 26th February, 1993 dismissed the said suit. The Learned Trial Court found that the said suit is not a suit under Section 6 of the Specific Relief Act and the plaintiff has claimed declaration of title as well as recovery of khas possession and the Learned Trial Court was of the view that the plaintiff has got title in respect of 4 decimals of land which the plaintiff had purchased from Mritunjoy Biswas but the plaintiff cannot get any relief of recovery of khas possession. It may be mentioned here that the suit property is measuring 4 decimals out of 39 decimals of total area of a certain plot. The Learned Trial Court found that the plaintiff has failed to prove exclusive title in the suit property as the suit plot has not been partitioned by metes and bounds. The Learned Trial Court found that the suit is not maintainable and the plaintiff ought to have filed a suit for partition along with a prayer for khas possession. 3. CHALLENGING the aforesaid judgment and decree of the Learned Trial Court the plaintiff/ respondent No.1 filed Title Appeal No. 57 of 1993 and the Learned Lower Appellate Court by judgment and decree dated 12th January, 1995 allowed the said appeal and set aside the judgment and decree passed by the Learned Trial Court. The Learned Lower Appellate Court found that the plaintiffs witnesses had well corroborated the case of the plaintiff that he was in possession of the suit land for more than 12/13 years before his purchase and that the plaintiff was dispossessed from the suit property by the defendants on 06.02.1991 after which the plaintiff purchased the suit property by a registered sale deed from a co-sharer, namely, Mritunjoy Biswas and the said sale deed has been marked as Ext.7. The defendants case of permissive occupation was sought to be supported by Ext. A. The Learned Lower Appellate Court found that the said Ajoy Biswas was examined as D.W.2 and he could not give the boundary of the 4 decimals of land in respect of which license was granted by him to the defendant No.1. The Learned Lower Appellate Court found that the boundary of the suit land is not shown in the said Ext. A whereas it has been given in the purchase deed of the plaintiff. The Learned Lower Appellate Court also found that the evidence of D.W.2 is inconsistent with the Ext. A and it is very difficult to rely upon the Ext. A. The Learned Lower Appellate Court also found that the plaintiff has been able to prove that he has got title over the 4 decimals suit property by virtue of purchase from the said Mritunjoy Biswas. A and it is very difficult to rely upon the Ext. A. The Learned Lower Appellate Court also found that the plaintiff has been able to prove that he has got title over the 4 decimals suit property by virtue of purchase from the said Mritunjoy Biswas. The Learned Lower Appellate Court found that the plaintiff is entitled to file the suit for recovery of a possession from the trespasser as the plaintiff was the co-owner of the suit property and the suit is maintainable. The Learned Lower Appellate Court further found that the defendants are trespassers in the suit property and, therefore, the plaintiff is entitled to get the decree for recovery of possession by way of evicting the defendants therefrom. The Learned Lower Appellate Court further found that the plaintiff has got better right, title and interest in the suit land and he is, therefore, entitled to get a decree for declaration in respect of the suit property. The Learned Lower Appellate Court allowed the Title Appeal and set aside the judgment and decree passed by the Learned Trial Court. The Learned Lower Appellate Court granted a decree for declaration of the plaintiffs title in respect of the suit property and also granted a decree entitling the plaintiff to get recovery of khas possession of the suit property by way of evicting the defendants therefrom. 4. CHALLENGING the said judgment and decree of the Learned Lower Appellate Court the defendants have preferred the instant Second Appeal. The Learned Advocate appearing on behalf of the defendants/appellants submitted that the property out of which the plaintiff/respondent No.1 has purchased 4 decimals of land is an unpartitioned property and the property which the respondent No.1 has purchased is not demarcated. The said Learned Advocate submitted that in such circumstances the Learned Lower Appellate Court could not have passed the impugned degree. The Learned Advocate appearing on behalf of the plaintiff/respondent No.1 submitted that even if it is assumed that the property out of which the plaintiff/respondent No.1 purchased 4 decimals of land is an unpartitioned property even then the plaintiff/respondent No.1 has a right to recover possession from the defendants/appellants as a co-owner in respect of such property. The said Learned Advocate submitted that every co-owner has a right in every inch of the property. The said Learned Advocate submitted that every co-owner has a right in every inch of the property. It will appear from the findings of facts made by the Learned Courts below that both the Learned Courts below found that the plaintiff/respondent No.1 has got title in respect of the said 4 decimals of land which was purchased by the plaintiff/respondent No.1. Both the Learned Courts below found that the plaintiffs purchase of 4 decimals of land out of 39 decimals is a valid one. The defendants/ appellants have pleaded that they were granted license by Ajoy Kumar Biswas son of late Satkari Biswas. The plaintiff has purchased the property from Mritunjoy Biswas who is also a son of late Satkari Biswas. The Learned Lower Appellate Court has found that the plaintiff was in possession of the suit land more than 12/13 years before his purchase and that the plaintiff/respondent No.1 was dispossessed from the suit property by the defendants on 06.02.1991 after which the plaintiff purchased the suit property by a registered sale deed (Ext.7). The Learned Lower Appellate Court has also found that the said Ajoy Kumar Biswas (D.W.2) could not indicate the boundary of the 4 decimals of land in respect of which license was granted by him to the defendant No.1 and it is also the finding of the Learned Lower Appellate Court that the boundary of the suit land was also not shown in the Ext.A but such boundary has been given in the purchase deed of the plaintiff/ respondent No.1. Being the final court of facts, the Learned First Appellate Court found that the evidence of D.W.2 is inconsistent with Ext.A and it is very difficult to rely upon Ext. A. 5. IT appears from the facts and circumstances of the case that the defendants/appellants can at best be said to have been licensees in respect of a portion of the entire 39 decimals of land. Even if the argument made on behalf of the defendants/ appellants that the property concerned is an unpartitioned property is accepted for the sake of argument, the Learned Lower Appellate Court is right in coming to the conclusion that the plaintiff/respondent No.1 is entitled to recover possession of the suit property as a co-owner in respect of the said property. The submissions made by the Learned Advocate for the plaintiff/respondent No.1, as indicated above, is correct. The submissions made by the Learned Advocate for the plaintiff/respondent No.1, as indicated above, is correct. In the present case none of the other co-owners has raised any objection against the filing of the suit by the plaintiff/respondent No.1. IT is also the law that the plaintiff/respondent No.1 was not under any obligation to obtain any prior permission from the other co-owners before the filing of the suit. IT is also not necessary that all the co-owners should be impleaded as parties to the suit for recovery of possession. 6. The decisions reported at (2006) 2 Supreme Court Cases 724 (Mohinder Prasad Jain - vs. - Manohar Lal Jain) and (2004) 3 Supreme Court Cases 178 (India Umbrella Manufacturing Co. and others - vs. - Bhagabandei Agarwalla (dead) by Lrs. Savitri Agarwalla (Smt) and others) may be referred to. In Mohinder Prosad Jains case (supra) the Honble Supreme Court was pleased to observe that it is not necessary for the co-owner to show before initiating the eviction proceedings that he had taken option or consent of the other co-owner but, however, in the event a co-owner objects thereto, the same be a relevant fact. In India Umbrellas case (supra) the Honble Supreme Court was pleased to observe that it is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners and this principle is based on the doctrine of agency. The Honble Supreme Court was further pleased to observe that one co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other coowners and the consent of the other co-owners is assumed as taken unless it is shown that the other co-owners are not agreeable to eject the tenant and the suit was filed inspite of their disagreement. In the present case, however, there has been no transfer of interest in the property concerned in favour of the defendants/appellants as such and the defendants have claimed to be bare licensees in respect of the property in question. The Learned Advocate for the plaintiff/respondent No.1 submitted that in the instant appeal there is no substantial question of law. In the present case, however, there has been no transfer of interest in the property concerned in favour of the defendants/appellants as such and the defendants have claimed to be bare licensees in respect of the property in question. The Learned Advocate for the plaintiff/respondent No.1 submitted that in the instant appeal there is no substantial question of law. With regard to the second substantial question of law formulated by this court it appears that the Learned Lower Appellate Court has applied its mind to the evidences on record and came to the conclusion that the evidence of D.W.2 is inconsistent with Ext.A and it is very difficult to rely upon Ext. A. The Learned Advocate appearing on behalf of the appellants has not indicated in what manner and on what ground such finding and/or observation of the Learned Lower Appellate Court could be said to be unjustified. The Learned Lower Appellate Court being the final court of facts, this court is not inclined to interfere with such findings of facts without any proper and cogent reason. 7. IN view of the discussions made above this court finds that there is no merit in the present second appeal which is, accordingly, dismissed. There will, however, be no order as to costs. Urgent Xerox certified copy of this judgment, if applied for, shall be given to the parties on compliance of usual formalities. Later: 8. AFTER the aforesaid judgment was delivered in court, Learned Advocate appearing on behalf of the appellants prays that the operation of the aforesaid judgment may be stayed for about six weeks. Learned Advocate appearing on behalf of the plaintiff/respondent No.1 opposes such prayer. Considering the submissions made by the Learned Advocates for the respective parties, let there be stay of operation of the aforesaid judgment for a period of six weeks from this date.