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2012 DIGILAW 225 (CAL)

Premlata Biswas v. Debdas Biswas

2012-03-17

ASHIM KUMAR BANERJEE, MRINAL KANTI SINHA

body2012
JUDGMENT ASHIM KUMAR BANERJEE, J. 1. Debdas Biswas and Bipradas Biswas filed a suit in 2004 against Smt. Premlata Biswas, Adhir Ranjan Haldar and Namita Haldar, inter alia, claiming for a declaration that the suit property comprised of 2.92 acres as fully described in the schedule should be declared as belonged to the plaintiffs with a corresponding prayer for demarcation of the land in question through a joint survey with the defendants. The defendants filed Written Statement denying the ownership as claimed by the plaintiffs over the land in question that became the subject matter of dispute. 2. If we look back, we would find that Bilat Mondal, Rajab Ali Mondal, Kachhim Mondal, Ichhab Mondal, Taleb Mondal, Chiyam Mondal, Ahad Mondal, Majid Mondal and Phani Bibi were the owners of the land in question as per C.S. record. Majid, Phani, Chhiyam, Ichhab and Kachhim transferred their shares through oral sale in favour of Bilat Ali, Rajab Ali, Rakhal Mondal and Taleb Mondal. Accordingly, the transferees were duly recorded in R.S. records. The plaintiffs purchased the property from Taleb Ali, Sarbat Ali Biswas, Ilias Ali and Idris Ali Mondal. They purchased the share of Phani Bibi. Plaintiffs also purchased the share of Chhapinnechha Bibi and Rokina Khatun. The plaintiffs, thus, claimed ownership of the 3. Subject land derived from Bilat Ali group and their successor in interest. 4. On the other hand, the share of Fakir Chand Mondal was purchased by Kanai Lal Mallik and Balaram Mallik. They sold their shares to one Sailen Biswas and Fatik Biswas. Sailen Biswas and Fatik Biswas transferred their share subsequently in favour of Adhir Ranjan Haldar and Namita Haldar. 5. Premlata however, claimed ownership of the share belonged to Kashem as Premlata purchased the property from the heirs of Majid and widow of Kashem. The plaintiffs, however, contended that the day Premlata acquired the share the heirs of Majid or Kashem did not have any interest in the property at all that could be transferred in favour of Premlata. Thus, she was not entitled to any share. As and by way of an alternative submission, Premlata could, at best, get title to the extent of 7-18th share. 6. The plaintiffs Debdas and Bipradas filed a suit in 1971 being Title Suit no.201 of 1971 that was re-numbered as Title Suit no.11 of 1973. Thus, she was not entitled to any share. As and by way of an alternative submission, Premlata could, at best, get title to the extent of 7-18th share. 6. The plaintiffs Debdas and Bipradas filed a suit in 1971 being Title Suit no.201 of 1971 that was re-numbered as Title Suit no.11 of 1973. In the said suit Debdas group, the plaintiffs claimed that they were owners of the property in question and prayed for recovery of possession of the entire property to the exclusion of Abani Kumar Biswas. 7. The learned Judge dismissed the suit vide judgment and order dated November 30, 1973. The learned Judge observed Majid died before the death of Padma Bibi and consequently her share was inherited by Jahabux Mallil, Maharani Mallik, Jaharali Mallik and Abul Mallik and the defendant no.2 purchased the same from them. Plaintiffs did not have any title in the suit property in respect of the shares of Majid and Kashem. 8. A Title Appeal was preferred. The appellate Court set aside the judgment and decree of the Trial Court on the ground that the suit was bad for non-joinder of heirs of Balaram. The learned Judge observed that Balaram was a co-owner. Balarams heirs were not on record. Hence, the suit should be remanded back to be heard afresh in presence of heirs of Balaram as well. 9. Pursuant to the order of remand, the learned Judge again heard the matter. The learned Judge considered the Additional Written Statement filed by Abani and Premlata to the extent that one Sailen Biswas and Fatik Biswas constructed their house in the suit property. Hence, they were necessary parties. The plaintiffs did not deny such statement. PW-6 in his evidence corroborated such fact. The learned Judge dismissed the suit again for non-joinder of parties. 10. The learned Judge however, granted liberty to file a fresh suit in proper form. The said judgment was delivered on August 31, 1979. Parties accepted the said decision and did not prefer any appeal. The matter rest there for about twenty-five years. 11. In 2004, Debdas and Bipradas filed a suit being Title Suit no.16 of 2004 before the learned Civil Judge (Sr.Divn.), Ranaghat, Nadia, inter alia, for a declaration that they were the owners of the property being 2.92 acres as fully described in the schedule whereas Premlata did not have any interest in the property. 11. In 2004, Debdas and Bipradas filed a suit being Title Suit no.16 of 2004 before the learned Civil Judge (Sr.Divn.), Ranaghat, Nadia, inter alia, for a declaration that they were the owners of the property being 2.92 acres as fully described in the schedule whereas Premlata did not have any interest in the property. At best she could have 7-1/8th share in the property. The Court should appoint a Survey Commissioner and demarcate the land belonging to the plaintiffs. It was rather a suit for declaration and partition. This time, Debdas and Bipradas admitted the share of Premlata however, not to the extent as claimed by Premlata but for a lesser share. 12. The learned Civil Judge (Sr. Divn.) considered the matter and held that the plaintiff had the right, title and interest in respect of fourteen annas shares in the suit property whereas the defendant nos. 2 and 3 being Adhir Ranjan and Nomita had balance two annas share. Premlata did not have any share at all. 13. Being aggrieved, Premlata filed the instant appeal that was heard by us on the above mentioned dates. 14. Mr. Tapabrata Chakraborty, learned counsel appearing for the appellants contended as follows :- i) The initial judgment in 1973 suit holding that Debdas Group did not have any title at all, reached finality when the first appellate Court did not deliberate on the issue and merely remanded the matter back to the Court below on the ground of non-joinder of parties and the first Court, even on remand, did not upset the said decision and dismissed the suit again for non-joinder of parties. The subsequent suit, after twenty-five years, that too, without availing the liberty given by the first Court in the earlier suit contemporaneously, was barred by res judicata. ii) The first Court in its decision dated August 31, 1971 gave liberty to Debdas group to file a proper suit. Having not availed of such remedy, the subsequent suit on the identical issue after twentyfive years was not maintainable. iii) As per the L.R. Record the predecessors of Premlata were shown as owners of the subject land as would appear from page 35 and 36 of the Paper Book. The Court below should have taken into account such aspect. Having not availed of such remedy, the subsequent suit on the identical issue after twentyfive years was not maintainable. iii) As per the L.R. Record the predecessors of Premlata were shown as owners of the subject land as would appear from page 35 and 36 of the Paper Book. The Court below should have taken into account such aspect. iv) The devolution of interest as clearly explained in the judgment and decree dated November 30, 1973 was not taken into account by the learned Judge. 15. Elaborating his submission, Mr. Chakraborty contended that Debdas and Bipradas being the plaintiffs in the subject suit explained the delay by showing the cause of poverty that could not be a valid ground as observed by our Court in the decision reported in Volume-76 Calcutta Weekly Notes Page-435 (Sitala Debi Vs- Man Bahadur). He further contended that record of right did not confer any title hence, the plea of the plaintiffs that they featured in the R.S. record could not be a valid ground to sustain the judgment and order impugned. He referred to the decision in the case of Gurunath Manohar Pavaskar and Ors. Vs- Nagesh Siddappa Navalgund and Ors. reported in 2007 Volume-VIII Supreme Page-561 in this regard. 16. Mr. Chakraborty relied on the Apex Court decision in the case of Gurucharan Singh VS- Kamla Singh and Ors. reported in All India Reporter 1977 Supreme Court Page-5 on the issue of limitation and the Single Bench decision of our Court in the case of Sk. Manzoor and Ors. VS- Abdus Salam reported in 2011 Volume-I Calcutta Law Journal Page-87 on the plea of res judicata. 17. Opposing the appeal Mr. S.S. Mukherjee, learned counsel appearing for the respondents Debdas and Bipradas contended as follows :- i) Purchase by plaintiffs was not denied by the Premlata, hence, the suit was maintainable. C.S. record was produced to support the possession of the respondents. ii) Premlata did not adduce any evidence to support her case. Her son deposed without any power or authority produced for the same. iii) Dipankar Biswas, the son of Premlata categorically admitted that he had no personal knowledge in the controversy. Hence, the learned Judge was right in dismissing the suit. 18. Learned counsel referred to pages 20, 23, 29 Part-II of the Paper Book to show that the appellant did not have any valid title and interest over the property. iii) Dipankar Biswas, the son of Premlata categorically admitted that he had no personal knowledge in the controversy. Hence, the learned Judge was right in dismissing the suit. 18. Learned counsel referred to pages 20, 23, 29 Part-II of the Paper Book to show that the appellant did not have any valid title and interest over the property. He also contended that the decision of the first appellate Court in the earlier suit was an open remand, hence, the earlier decision could not operate res judicata as erroneously claimed by Mr. Chakraborty. 19. To support his contention Mr. Mukherjee relied on the following decisions :- i) All India Reporter 1999 Supreme Court Page-1441 (Vidhyadhar VS- Mankikrao and Anr.) 10 ii) All India Reporter 2005 Supreme Court Page-439 (Janki Vashdeo Bhojwani and Anr. VS- Indusind Bank Ltd. and Ors.) iii) 2010 Volume-X Supreme Court Cases Page-141 (Alka Gupta VS- Narender Kumar Gupta) Mr. Chakraborty strenuously relied upon the decision in the case of Sk. Manzoor and Ors. (Supra) wherein the learned Single Judge observed that decision of the Trial Court in earlier proceeding was incidental to the substantial issue, even then the same would operate res judicata in subsequent suit. The Apex Court decision in the case of Alka Gupta (Supra), however, makes it clear that when the second suit was filed on different and distinct cause of action plea of res judicata would not be applicable. In our case, we find that it was an open remand. Hence, the earlier decision would not operate as res judicata and in any event, the earlier decision stood merged in the subsequent decision of 1979. The learned Judge dismissed the suit on the ground of non-joinder of parties. No decision was had on merits. Hence, the plea of res judicata was not applicable. We do not wish to make any comment on the earlier proceedings. We are, however, of the view that the observation of the learned Munsif in his judgment and decree dated November 30, 1973 did not subsist at all after it was set aside by the first Appellate Court. We fully agree with Mr. Mukherjee that it was an order of open remand that would preclude the earlier decision to subsist. 20. We, however, wish to look at the problem from a different angle. We fully agree with Mr. Mukherjee that it was an order of open remand that would preclude the earlier decision to subsist. 20. We, however, wish to look at the problem from a different angle. The learned Judge of the Court below passed the preliminary decree in between Debdas and Bipradas on one hand and Adhir and Namita on the other. The learned Judge observed that Premlata did not have any share at all. If Premlata is still shown in the L.R. record and Debdas, Bipradas, Adhir and Namita being shown in R.S. records the parties would be at liberty to approach the Revenue Authority to have a consistent recording. On that score, we do not find fault in the judgment and decree impugned herein. Correction of record of right is a statutory remedy under the Land Reforms Act. While disposing of any such application and the objections raised therefor the Civil Court judgments are ordinarily relied upon. However, such recording could not be the basis of ownership to be considered in a civil proceeding. 21. The appeal fails and is hereby dismissed. There would be no order as to costs. The lower court records be sent down at once.