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2012 DIGILAW 307 (CAL)

Sunil Kumar Mondal v. Maharani Mondal

2012-04-12

PRASENJIT MANDAL

body2012
Judgment Prasenjit Mandal, J. 1. THIS second appeal is directed against the judgment and decree dated November 16, 2005 passed by the learned Additional District Judge, 1st Court, Howrah in Title Appeal No.70 of 1999 thereby affirming the judgment and decree dated March 31, 1999 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Suit No.56 of 1996. 2. THE plaintiff/appellant herein instituted the aforesaid suit praying for a decree of declaration that the plaintiffs are the 16 annas owner of 'A' Schedule property, a decree of declaration that the defendants have no right, title and interest in the suit property nor their predecessor-in-interest had any right, title and interest in the suit property, a decree of eviction of the defendant nos. 6 to 8 from the suit property as described in Schedule 'B' of the plaint, permanent injunction and other reliefs. The defendant Nos. 6 and 7 contested the said suit denying the material allegations made in the plaint. Both the parties adduced evidence in support of their respective contentions. The learned Trial Judge dismissed the suit. 3. THE learned First Appellate Court also dismissed the first appeal preferred by the plaintiffs. The defendant Nos. 6 and 7 contested the said suit denying the material allegations made in the plaint. Both the parties adduced evidence in support of their respective contentions. The learned Trial Judge dismissed the suit. 3. THE learned First Appellate Court also dismissed the first appeal preferred by the plaintiffs. THE following substantial questions of law have been framed for decision in this appeal:- a) In view of the admitted fact that the Deed by which the suit property was purchased stands in the name of Rosomoy Mondal, predecessor-in-interest of the plaintiff alone, whether the learned Courts below committed substantial error of law in holding that the same was acquired by a joint Hindu family of which Sital was one of the coparcener in the absence of any evidence adduced by the defendant; b) In view of the admitted fact that the suit property was purchased in the name of the predecessor-in-interest of the plaintiff, whether the learned Courts below committed substantial error of law in dismissing the claim of the plaintiff for declaration of title and permanent injunction notwithstanding the fact that the defendants failed to adduce materials showing the existence of a joint family and purchase of the property from the alleged joint fund of the family; Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that the following facts are not in dispute:- i) THE suit property originally belonged to the Jamindar Jugal Kishore Chakraborty under whom one Mohesh Chandra Mal was the thika tenant in respect of the said suit property. ii) Mohesh Chandra Mal sold out his thika tenancy right along with structure to Rasamoy Mondal, predecessor-ininterest of the present plaintiff by a sale-deed dated October 5, 1934. iii) Although the measurement of the property mentioned in the Deed of 1934 describes as 1 Cottah, 5 Chittaks but from the boundaries, the area is to the extent of 2 Cottahs, 1 Chittak and 19 Sq. Ft. Thus, the predecessorin- interest of the plaintiff possessed 24 Chittaks of land forcibly and subsequently when Durga Chandra Pal recovered his 24 Chittaks of land possessed by Late Rasamoy Mondal, he settled the said 24 Chittaks of land with Rasamoy Mondal by granting a receipt to him. Ft. Thus, the predecessorin- interest of the plaintiff possessed 24 Chittaks of land forcibly and subsequently when Durga Chandra Pal recovered his 24 Chittaks of land possessed by Late Rasamoy Mondal, he settled the said 24 Chittaks of land with Rasamoy Mondal by granting a receipt to him. Thereafter, the two lands were described as one Municipal Holding No.26/1, Bhuban Mohan Mukherjee Lane and mutation had been done in the name of Rasamoy Mondal who paid the municipal taxes for the suit property. iv) After the death of Rasamoy Mondal, the names of the plaintiffs were recorded with the thika controller. Rasamoy Mondal and Sital Mondal are two full brothers. THE defendants are the heirs of Sital Mondal. v) Both Rasamoy and Sital worked for gains in Hunuman Jute Mill. Now, the plaintiffs Sunil and the defendant No.6 Bijay Krishna Mondal have also been working in the said jute mill. vi) Sital had many children. Rasamoy and Sunil had their paternal property in Midnapore and the members of the family of Sital stayed at Midnapore. THE defendant No.6 was born in the year 1951 and his children were grown up in Midnapore. In 1971, the defendant No.6 transferred his ration card to Howrah, that is, the suit property at 26/1, Bhuban Mohan Mukherjee Lane, obviously, for the purpose of getting card at the employment exchange or for other purposes. vii) Rasamoy and Sital took their meals in the joint mess at the suit property at Howrah. Rasamoy died in 1961 and Sital died in 1994. THE heirs of the two brothers residing at the suit property took their meals jointly at the suit property till 1996 and the defendants paid charges for the meals. At present, the defendants are occupying a portion of the property as described in Schedule 'B' which is a Varandha over which recovery of possession has been sought for. 4. MR. Chatterjee, learned Senior Advocate appearing for the appellant has submitted that it is unfortunate to mention that both the Courts below have failed to appreciate the evidence on record and as such they have come to wrong conclusions. 4. MR. Chatterjee, learned Senior Advocate appearing for the appellant has submitted that it is unfortunate to mention that both the Courts below have failed to appreciate the evidence on record and as such they have come to wrong conclusions. In fact, both the Courts below did not consider the evidence on record at all and thus, they have failed to appreciate the fact that the materials-on-record have established that the appellant has right, title and interest in the suit property and his predecessor had also right, title and interest over the suit property by purchase in 1934. Mr. Chatterjee has also submitted that the Courts below have totally failed to consider the evidence adduced by the D.W.1. It has been proved by evidence on behalf of the plaintiff/appellant that the appellant has right, title and interest over the suit property and that Rasamoy purchased the suit property out of his own fund and not from the fund of the joint family as contended by the defendants. 5. MR. Chatterjee has also submitted that the learned First Appellate Court has also failed to appreciate the admissions made by the defendants in their written statement and in the oral evidence adduced by the D.W.1. Both the Courts below should have held that the status of the defendants is nothing but a licensee because of the fact that Sital was a mere licensee and he stayed at the suit premises on the ground that both the brothers worked at Hunuman Jute Mill and it was difficult for Sital to attend the Jute Mill from their native residence at Midnapore. MR. Chatterjee has contended that the essential ingredients of benami transaction such as jointness of the family, contribution of money to create a joint fund, payment of the consideration money out of the joint fund, etc. have to be proved by the defendants but such ingredients have not been proved by them. Rather the evidence of the D.W.1 is contrary to what their defence stance is. 6. MR. Chatterjee has also contended that according to Section 101 of the Indian Evidence Act, the burden of proof lies upon the person who asserts the fact. have to be proved by the defendants but such ingredients have not been proved by them. Rather the evidence of the D.W.1 is contrary to what their defence stance is. 6. MR. Chatterjee has also contended that according to Section 101 of the Indian Evidence Act, the burden of proof lies upon the person who asserts the fact. In the instant case, it is the defendants who have asserted that Rasamoy and Sital had their joint family and so according to Section 101 of the Indian Evidence Act, the burden of proof of joint family lies upon the defendants and not on the plaintiff. He has placed reliance on the decisions of Kunja Behari Rana and ors. v. Gourhari Rana and ors. reported in AIR 1958 Calcutta 105 particularly the Paragraph No.32, Rajendra Nath Majhi v. Tustu Charan Das and anr. reported in AIR 1979 Calcutta 105 particularly Paragraph No.5 and 6, K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer and ors. reported in AIR 1965 Supreme Court 289 particularly Paragraph No.15 and 17 and thus, he submits that when the acquisition of a property by any member of the joint family in his name happened, the burden of proof is on the person who asserts that the property is joint property. He is also required to prove that when the property was acquired there was sufficient nucleus of the joint family fund with which the acquisition could have been made and also that such fund was actually available to the acquirer. Mr. Chatterjee has also referred to the decision of Santosh Hazari v. Purushottam Tiwary (Deceased) by Lrs. reported in (2001)3 SCC 179 and thus, he submits that when the First Appellate Court has functioned improperly in coming to a conclusion, such improper functioning may give rise to a substantial question of law and thus, in the second appeal such substantial question of law could well be decided and appropriate reliefs could be given to the plaintiff/appellant. 7. LASTLY, Mr. Chatterjee has submitted that since it is, at least, the admitted position that Rasamoy had 8 annas share in the suit property, the Courts below should have granted at least declaration of right, title and interest of the appellant in the suit property to the extent of 8 annas. 7. LASTLY, Mr. Chatterjee has submitted that since it is, at least, the admitted position that Rasamoy had 8 annas share in the suit property, the Courts below should have granted at least declaration of right, title and interest of the appellant in the suit property to the extent of 8 annas. So, the order of the dismissal of the suit or the appeal passed by the Courts below cannot be supported at all and they must be set aside. Per contra, Mr. Ghosh appearing on behalf of the respondents has mainly argued on the law points. He has contended that existence of the joint family has been proved. It has been proved that parties lived in the joint family upto 1996. The Records of Rights as produced by the respondents are the finally published records of rights and no objection has been raised either by Rasamoy or by his successors for correction of the same before the appropriate authority. Therefore, the Record of Rights has also a presumptive value and according to the decision of 69 CWN 210 presumption of correctness of the entries therein should be adopted. It should be presumed that Rasamoy and Sital had 8 anna share each in the suit property and so, the Courts below were justified in rejecting the prayer of the plaintiffs. 8. HE has also contended that the suit for recovery of possession is barred by the limitation because of the fact that within 12 years from the date of knowledge of such publication, no relief for recovery of possession was sought for. Mr. Ghosh submits that presumption under Section 114(g) of the Indian Evidence Act should also come into play in such circumstances and the presumption will be that the suit property had been purchased out of the nucleus of the joint family fund. In support of his contention, he has relied on the decision of Ambika Prasad Thakur and ors. v. Ram Ekbal Rai (dead) reported in AIR 1966 Supreme Court 605. Thus, relying on the decision of Sher Singh and Ors V. Gamdoor Singh reported in AIR 1997 Supreme Court 1333 particularly the Paragraph No.5. Mr. Ghosh submits that when the existence of the joint family is not in dispute, the property held by family assumes the character of coparcenary property. Thus, relying on the decision of Sher Singh and Ors V. Gamdoor Singh reported in AIR 1997 Supreme Court 1333 particularly the Paragraph No.5. Mr. Ghosh submits that when the existence of the joint family is not in dispute, the property held by family assumes the character of coparcenary property. So, unless the appellant proves that the suit property was acquired by Rasamoy out of his own fund, the property should be presumed to be joint and so the First Appellate Court has rightly dismissed the appeal. Having considered the submissions made by the learned Counsel of both the sides and on perusal of the materials-on-record, I find that the appellant filed the suit for the reliefs already stated earlier. The evidence on record adduced by the plaintiff both orally and documentary proves that the appellant or his predecessor dealt with the suit property in such a fashion which is expected in the case of absolute ownership over the suit property. They have produced the necessary Deed of Sale, documents in support of ownership and possession of the suit property and the rent paid by them to the thika controller for possessing the suit property. On the other hand, the respondent although contended that suit property had been purchased out of the nucleus of the joint family fund, they have failed to adduce any evidence in this regard. No doubt, according to Section 101 of the Indian Evidence Act and the decision of AIR 1958 Calcutta 105, AIR 1969 Calcutta 105, AIR 1965 Supreme Court 289, the burden of proof lies on the respondents to prove that the suit property had been purchased out of the joint fund of the joint family. As per materials-on-record, since both Rasamoy and Sital worked in Hunuman Jute Mill like the present plaintiff and the defendant No.6. Rasamoy purchased the suit property in the year 1934. Sital was junior to Rasamoy by at least 10 years and when he got appointment in the said Jute Mill, in consideration of his difficulty, Rasamoy allowed him to stay at the suit property and Sital paid charges for the meals. The respondents have contended that Sital was major in 1934 and he worked for gains in Hunuman Jute Mill since 1932, but, they have failed to produce any convincing document in support of their contention. The respondents have contended that Sital was major in 1934 and he worked for gains in Hunuman Jute Mill since 1932, but, they have failed to produce any convincing document in support of their contention. Though the D.W.1 is also working in Hunuman Jute Mill, he has not produced any document or any office papers to show that Sital had been working in the said Jute Mill since 1932. On the contrary, the plaintiff has produced the death certificate of Sital which clearly indicates that Sital died in 1994 at the age of 70 years. It may be mentioned herein that in 1994 there was no suit between the parties. At the time of death, naturally, the respondents gave the age of Sital at the time of his death in 1994 and so such age as mentioned assumes presumption that the correct age had been recorded therein by them. As per death report, Sital was 70 years of age in 1994 so, if I go backward in 1934, Sital could be at best at the age of 10 years only. So, the question of employment in the said Jute Mill could not arise at all because of the minority of Sital. 9. IT may be pointed out here that at first the respondents took the plea that Rasamoy was the Karta of the joint family and he looked after all the heirs of their family and the family was being maintained from the joint fund of the Rasamoy, Sital and Monorama Bhowmik (Pisima of Rasamoy and Sital) and the fund of the joint family was kept by him and the suit property was purchased out of such joint fund. But during further examination of the D.W.1 when he realised that the nucleus of the joint family fund could not be proved, they changed their stand and the D.W.1 has stated that the father of Rasamoy and Sital, namely, Radhanath Mondal was the Karta of the family. 10. BUT, such contention of the respondent has been falsified by the deposition of the D.W.1, Bijan Krishna Mondal. Though, he has claimed that the joint family continued upto 1996, he has clearly stated that the Shradh Ceremony of Rasamoy was performed in Howrah by his sons and the Shradh Ceremony of Sital was performed at Midnapore. The D.W.1 and his brothers did not do anything about the Shradh Ceremony of Rasamoy Mondal. Though, he has claimed that the joint family continued upto 1996, he has clearly stated that the Shradh Ceremony of Rasamoy was performed in Howrah by his sons and the Shradh Ceremony of Sital was performed at Midnapore. The D.W.1 and his brothers did not do anything about the Shradh Ceremony of Rasamoy Mondal. So, such statement causes doubt about the veracity of the statement of the D.W.1 as to joint family and joint fund. Although, he has stated that the Ghat Kaj and Shradh Ceremony of Rasamoy were done jointly with them that is only with regard to rituals. The D.W.1 has also clearly stated that his ration card was at his native place at Midnapore and it was transferred in 1970 at the age of 20 years and this is surely the purpose of making card for Employment Exchange or otherwise as stated earlier. Dispute between the parties started 1993 when the respondent wanted to start a factory at the suit property and accordingly the matter was referred to local people. The respondents never took steps for making entry of their names with municipality. At the later part of the examination, the D.W.1 has stated that Radhanath, father of Rasamoy and Sital, was the family Karta and there was no joint fund of Rasamoy and Sital in the year of 1934 and that Radhanath died some time before 1962. The D.W.1 is not also in a position to show if municipal tax and Zamindar's rent were paid. The D.W.1 has also admitted neither his father nor they ever filed any application before the thika controller for recording their names as thika tenants in respect of their claim of 8 anna shares therein. The defendants have failed to show a single paper that the family was being maintained out of the joint fund of Rasamoy, Sital and Monorama. The D.W.1 has also failed to file a single paper to show that Rasamoy and Sital jointly performed the repairing and renovation works in respect of the suit property. After the death of Sital, the respondents did not tender any rent to the Zamindar as per statement of the D.W.1. 11. THERE are two electric meters in the suit property, one in the name of Sunil Mondal (P.W.1) and another in the name of the wife of Sunil Mondal but not a single meter in the name of the respondents. 11. THERE are two electric meters in the suit property, one in the name of Sunil Mondal (P.W.1) and another in the name of the wife of Sunil Mondal but not a single meter in the name of the respondents. The meter in the name of the wife of Sunil Mondal was taken for business purpose under 440 volts. The respondents did not raise any objection as per statement of D.W.1. So, the plaintiff/appellant dealt with the suit property as their own property. 12. LASTLY, the D.W.1 has admitted that his father used to pay the maintenance amount (cost of meals) for their stay at the suit property. In absence of their father they used to take meals by paying cost of meals so long they remained present in the suit property. So, all such statements of the D.W.1 clearly indicate that their status with respect to the suit property is not as owners but as licensees. The P.W.2 is Kumari Gangua Rani Mondal. She resides at the suit property and she is the sister of the D.W.1 Bijay Krishna Mondal. She was brought up by Rasamoy. The reason has been explained by the P.W.1 to the effect that Rasamoy had no daughter and the defendants/respondent's father sital was financially incapable of bringing up his children. This evidence of the P.W.1 is corroborated by the P.W.2 and the P.W.2 has clearly stated that she has been residing at the suit property all along and she was brought up by Rasamoy. She has clearly stated that she has good relation with her own mother and other brothers and sisters and after receiving the summons from the Court she personally told her mother, brothers and sisters to settle up the dispute mutually with Sunil but in vain. Her clear statement is that her mother never resided at the suit premises. It is her clear statement that Rasamoy and Sunil (P.W.1) did repairing works in the suit premises whenever required. 13. DURING her cross-examination, nothing has been obtained to show that her evidence is unreasonable and unacceptable. Though, she was brought up by Rasamoy, her conduct appears to be natural. Thus, the statement of the P.W.1 relating to ownership of the suit property is corroborated by the P.W.2 and other documentary evidence. The defendants have failed to discharge their burden of proof. Though, she was brought up by Rasamoy, her conduct appears to be natural. Thus, the statement of the P.W.1 relating to ownership of the suit property is corroborated by the P.W.2 and other documentary evidence. The defendants have failed to discharge their burden of proof. So, on scrutiny of the evidence on record, I am of the view that both the Courts below have totally ignored the evidence adduced by the parties and they have dismissed the suit in a mechanical manner without scanning of the evidence on record. 14. IT may be noted herein that there are so many defendants/respondents herein but the defendant Nos. 6 and 7 are only interested to proceed with the matter and the defendant No.8 is the P.W.2 who is supporting the plaint case as noted above. In such a situation, the points raised by Mr. Ghosh, are not tenable at all. With due respect to him, I come to this conclusion that his submission on the law points referred to above cannot be accepted. The presumption of correctness of the records of rights has been duly rebutted by the evidence of the P.W.s, exhibits and the admission of the D.W.1. The plaintiff/appellant has shown the cause of action to file the suit. The possession of the suit property remains with the plaintiff/appellant all along. So, the suit cannot be barred by limitation as contended by Mr. Ghosh. The plaintiff/appellant has proved his right, title and interest in the suit property. The learned Courts below have also failed to consider the evidence on record and thus, committed substantial error of law in coming to the conclusion that the appellant has failed to prove his right, title and interest in the suit property. Accordingly, the Courts below have committed substantial error of law in dismissing the prayer of the appellant for declaration of title and decree for eviction and permanent injunction. The substantial questions of law are thus answered. In the result, the impugned judgment and decree cannot be sustained. The second appeal succeeds. So, the second appeal is allowed. 15. THE judgment and decree dated November 16, 2005 passed by the learned 1st Appellate Court is hereby set aside. Similarly, the judgment and decree dated March 31, 1999 passed by the learned Trial Judge is also set aside. In the result, the impugned judgment and decree cannot be sustained. The second appeal succeeds. So, the second appeal is allowed. 15. THE judgment and decree dated November 16, 2005 passed by the learned 1st Appellate Court is hereby set aside. Similarly, the judgment and decree dated March 31, 1999 passed by the learned Trial Judge is also set aside. THE Title Suit No.56 of 1996 be and the same stands decreed on contests with costs against the contesting defendant Nos. 6 and 7 and ex parte without costs against the rest defendants in terms of the reliefs as sought for in prayer I, II, III, IV, V and VI of Paragraph No.18 of the plaint. THE defendants do deliver vacant possession of the suit property in favour of the plaintiff/appellant within 60 days hereof failing which the plaintiff/appellant will be at liberty to execute the decree of eviction through Court. 16. CONSIDERING the circumstances, there will be no order to as costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.