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2012 DIGILAW 923 (CAL)

Tapan Kumar Mondal v. Netai Gobinda Dutta

2012-10-04

TARUN KUMAR GUPTA

body2012
Judgment Tarun Kumar Gupta, J. This second appeal is directed against judgment and decree dated 30th August, 2006 passed by learned Additional District Judge, Fast Track Court, Bolpur in Title Appeal No.14 of 2005 confirming the judgment and decree of dismissal dated 8th October, 1999 passed by learned Civil Judge (Senior Division), Bolpur in Title Suit No.8 of 1997. 2. The present appellant as plaintiff filed Title Suit No.8 of 1997 in the Trial Court alleging that the suit plot being R. S. plot No.3081 /4886 measuring about six decimals belonged to Hrisikesh Dutta. Hrisikesh Dutta died leaving behind four sons namely Siba Prasad Dutta, Kashinath Dutta, Ramrenu Dutta and Bholanath Dutta. They inherited 1/4th share each in said property and started to possess in ejmal. Siba Prasad Dutta transferred his undivided half share to the appellant plaintiff (Tapan Kumar Mondal) by two deeds dated 27th August, 1992. Ramrenu Dutta died intested and his property devolved upon his son Radhagobinda and wife Priti. Radhagobinda sold his half share to one Santi Roy on 26.05.1994. Bholanath Dutta died leaving behind four sons namely Gour Gopal Dutta, Dol Gobinda Dutta, Ganesh Dutta and Prasanta Dutta who sold their undivided half share to one Renuka Roy by deed dated 26th May, 1994. Kashinath Dutta also died and on his death his sons sold their share to Santi Roy. The appellant plaintiff Tapan Kumar Mondal is carrying on business in one room standing on his purchased land but as he was facing difficulty in ejmal property he filed said suit (Title Suit No.8 of 1997) praying for partition. 3. Santi Roy and Renuka Roy who claimed to purchase some properties from some of the sons of Hrisikesh Dutta also filed a suit for partition being Title Suit No.7 of 1997. They made other alleged co-sharers including Tapan Kumar Mondal (Plaintiff of Title Suit No.8 of 1997) as defendants in their suit. Both the suits were tried analogously. 4. The present appellant (Tapan Kumar Mondal) filed written statement in Title Suit No.7 of 1997 supporting plaintiffs’ case and canvasing his claim as made out in his plaint filed in Title Suit No.8 of 1997. He also adduced evidence in said case as a witness (D.W.1). 5. Respondent Nos. 16 to 18 as defendants contested those suits by filing joint written statement denying material allegations of the plaints. He also adduced evidence in said case as a witness (D.W.1). 5. Respondent Nos. 16 to 18 as defendants contested those suits by filing joint written statement denying material allegations of the plaints. They contended inter alia that Hrisikesh Dutta being the owner in possession of the suit plot settled the entire property in favour of one Haripada Pal through a deed of 1934. The said property was earmarked by giving boundaries. Said Haripada Pal sold away the same to one Nagarmal Tulsian in 1995 through a registered kobala. Nagarmal Tulsian sold the same to one Ramabatar Agarwal through a registered kobala dated 11th May, 1956. Said Ramabatar Agarwal while residing there and carrying on business sold said property to Gouranga Pal Nitya Nanda Pal, Madan Mohan Pal and Mahima Pal, the contesting defendants through four separate kobalas executed in 1979. There is a building consisting of four rooms on the suit plot which were let out to four tenants namely Haru Mondal, Adyanath Mondal, Lalugopal Pal and Lasmi Roy. Those contesting defendants brought eviction suits against all four tenants. They obtained an eviction decree against Adyanath Mondal, the father of Tapan Kumar Mondal (plaintiff of Title Suit 8 of 1997) which was affirmed in the title appeal being Title Appeal No.151 of 1987. No second appeal was preferred and in the execution case this appellant plaintiff Tapan Kumar Mondal was substituted on death of original tenant Adyanth Mondal. After dismissal of the Title Appeal No.151 of 1987 filed by Adyanath Mondal, this appellant plaintiff Tapan Kumar Mondal filed a suit being title Suit No.96 of 1992 against these defendants and others praying for declaration of his title over the suit land on which tenanted room of Adyanath Mondal was situated alleging his purchase of the same from Shiba Prasad, one of the sons of Hrisikesh Dutta on the strength of two alleged kobalas dated 27.08.1992. Said Title Suit No.96 of 1992 was dismissed on contest. None of the plaintiffs (Title Suit No.7 of 1997 and 8 of 1997) acquired any title over any portion of the suit plot on the strength of their alleged purchase deed as the heirs of Hrisikesh Dutta had no transferrable right in any part of the suit plot. Said Title Suit No.96 of 1992 was dismissed on contest. None of the plaintiffs (Title Suit No.7 of 1997 and 8 of 1997) acquired any title over any portion of the suit plot on the strength of their alleged purchase deed as the heirs of Hrisikesh Dutta had no transferrable right in any part of the suit plot. Apart from that claim of alleged title of Tapan Kumar Mondal (present appellant) of having title in the suit property was also barred by res judicata on account of dismissal of his title Suit No.96 of 1992. 6. After contested hearing learned Trial Court dismissed both the Title Suits by a common judgment dated 8th of October, 1999. 7. The present appellant (plaintiff of Title Suit No.8 of 1997) has filed an appeal being Title Appeal No.14 of 2005 but no appeal was preferred from the common judgment relating to dismissal of Title Suit No.7 of 1997. After contested hearing learned Lower Appellate Court dismissed the appeal on the ground that appellant plaintiff failed to establish that he acquired any title in the suit property by his alleged purchase and that appellant plaintiff’s claim of title over suit property was earlier rejected by a competent Court of law in Title Suit No.96 of 1992 and that judgment of Title Suit No.7 of 1997 against which no appeal was preferred and was disposed of by a common judgment along with Title Suit No.8 of 1997 reached its finality and the same also operated as res judicata in said appeal. 8. At the time of admission of this second appeal the following substantial questions of law were formulated by the Hon’ble Division Bench by the order dated 03.11.2006. 8. At the time of admission of this second appeal the following substantial questions of law were formulated by the Hon’ble Division Bench by the order dated 03.11.2006. (1) Whether the learned court of appeal below committed substantial error of law in holding that as the title Suit No.8 of 1997 out of which the appeal arose was heard along with Title Suit No.7 of 1997 where the present appellant was not a party, the issue decided in Title Suit No.7 of 1997 would become res judicata in the proceeding out of the Title Suit No.8 of 1997 notwithstanding the fact that the appellant was not a party to Title Suit No.7 of 1997; (2) Whether the learned court of appeal below committed substantial error of law in holding that the appellant acquired no title to the property by virtue of purchase from one of the sons of Hrishikesh Dutta by totally overlooking the recording in the record of rights indicating that the name of Hrishikesh appeared therein even in 1950s in respect of 06 decimal of land, whereas Hrishikesh sold part of the property to Haripada in the year 1935. 9. Mr. Amitava Mukherjee, learned counsel for the appellant plaintiff, submits that original owner Hrisikesh was the recorded owner of six decimal of land equivalent to 72 gondas in R. S. plot No. 3081 / 4886 and that even if it is admitted that he sold away some properties namely two cottahs 10 gondas which is equivalent to 50 gondas in favour of Haripada Pal in 1934 even then 22 gondas of land in suit plot remained with Hrisikesh. According to him, after death of Hrisikesh said remaining land of 22 gondas devolved upon his four sons namely Siba Prasad Dutta, Kashinath Dutta, Ramrenu Dutta and Bholanath Dutta in equal shares and hence plaintiff’s vendor Siba Prasad had at least 5 and half gonda of land and hence the finding of learned courts below that present appellant plaintiff’s vendor Siba Prasad had no share in the suit land through his father Hrisikesh had no basis. 10. He next submits that learned Courts below were wrongly of the view that the judgment and decree of dismissal passed in Title Suit No.96 of 1992 filed by the present appellant operated as res judicata in this subsequent suit of partition. 10. He next submits that learned Courts below were wrongly of the view that the judgment and decree of dismissal passed in Title Suit No.96 of 1992 filed by the present appellant operated as res judicata in this subsequent suit of partition. According to him, though the present appellant as plaintiff filed said Title Suit No.96 of 1992 against present defendant and others but it was a suit for declaration and injunction and not for partition and hence said judgment of dismissal cannot operate as res judicata in this subsequent suit for partition. He next submits that lower appellate court wrongly held that as no appeal was preferred against the judgment and decree of Title Suit No.7 of 1997 which was heard and disposed of by a common judgment along with Title Suit No.8 of 1997, the judgment and decree of said Title Suit No.7 of 1997 attained finality and would operate as a res judicata in the appeal preferred against the judgment and decree of Title Suit No.8 of 1997. According to Mr.Amitava Mukherjee, learned counsel for the appellant, neither the judgment of dismissal of Title Suit No.96 of 1992 nor the judgment and decree of dismissal passed in connection with Title Suit No.7 of 1997 can operate as res judicata during hearing of the appeal arising out of Title Suit No.8 of 1997. In this connection he refers case laws reported in AIR 1996 Supreme Court page 378 (Deva Ram and another vs. Ishwar Chand and another), AIR 1984 Orissa page 30 (Sahadeb Nayak vs. Satyabadi Nayak and others) and AIR 1984 page 316 Pat. 316 (Ram Nagendra Tiwary vs. Jagdamba Ojhain). 11. Mr. Jiban Ratan Chatterjee, learned counsel appearing for the contesting respondents submits that in Title Suit No.7 of 1997 the present appellant being plaintiff of Title Suit No.8 of 1997 was one of the defendants and hence No.1 substantial question of law as framed at the time of admission of this appeal was misconceived. Mr. 11. Mr. Jiban Ratan Chatterjee, learned counsel appearing for the contesting respondents submits that in Title Suit No.7 of 1997 the present appellant being plaintiff of Title Suit No.8 of 1997 was one of the defendants and hence No.1 substantial question of law as framed at the time of admission of this appeal was misconceived. Mr. Chatterjee next submits that though the earlier suit being Title Suit No.96 of 1992 was filed by this appellant (plaintiff of Title Suit No.8 of 1997) praying for declaration of his title in the suit property on the strength of his two alleged purchase deeds dated 27.08.1992 but after contested hearing it was dismissed by the learned Trial Court with the observations that the suit was not maintainable and that the alleged purchase deeds dated 27.08.1992 executed by Siba Prasad Dutta in favour of present appellant Tapan Kumar Mondal were collusive and no title passed to him. According to Mr. Chatterjee no appeal was preferred against said judgment and decree of dismissal and hence the findings of learned Trial Court on those counts remained as it is and will operate as resjudicata against the present appellant. Mr. Chatterjee further submits that the plaintiffs of Title Suit No.7 of 1997 and the plaintiff of Title Suit No.8 of 1997 (present appellant) took plea of purchase of lands in the suit plot from heirs of Hrisikesh Dutta. According to Mr. Chatterjee both the suits were heard analogously and learned Trial Court came to a finding of fact that after sale of land by Hrisikesh to Haripada in 1934 Hrisikesh had no right, title and interest over the suit land and hence his heirs had no transferable right in any part of the suit plot. Said finding of fact of learned Trial Court relating to Title Suit No.7 of 1997, Mr. Chatterjee submits, attained its finality as no appeal was preferred against said judgment and decree governing Title Suit No.7 of 1997. 12. Said finding of fact of learned Trial Court relating to Title Suit No.7 of 1997, Mr. Chatterjee submits, attained its finality as no appeal was preferred against said judgment and decree governing Title Suit No.7 of 1997. 12. It has been held by the Hon’ble Apex Court as reproduced in the judgment reported in AIR 1992 Madras page 280 that if two suits are tried together and a common judgment is rendered and separate decrees are also drawn up and one of the adjudications is allowed to become final that adjudication attains finality on and from the date of its adjudication and in the course of an appeal against the other judgment and decree the adjudication which had become final can be pleaded as res judicata on the ground that the controversy has been finally adjudicated upon. Admittedly, at the time of analogous hearing of Title Suit No.7 of 1997 and Title Suit No.8 of 1997 a common question arose as to whether after settlement of property to one Haripada by recorded owner Hrisikesh Dutta in 1934 any land of suit plot No.3081/4886 remained with Hrisikesh which might percolate down to his heirs after his death and the answer was given in the negative. In said suit (Title Suit No.7 of 1997) present appellant (plaintiff of Title Suit No.8 of 1997) appeared by filing his written statement. He also deposed as D.W.1. Admittedly, no appeal was preferred against said judgment and decree of dismissal passed in Title Suit No.7 of 1997. For not preferring any appeal against said judgment and decree of dismissal passed in Title Suit No.7 of 1997 it attained finality and the same cannot be reopened during hearing of appeal arising out of judgment and decree of dismissal passed in Title Suit No.8 of 1997 as the same is bound to operate as res judicata. 13. In this connection it is also pertinent to note that Title Suit No.96 of 1992 filed by the present appellant over the self-same property on the strength of self-same purchased deeds was dismissed with the specific observations that plaintiff’s alleged purchase deeds were collusive documents and that no title passed to the plaintiff appellant. As no appeal was preferred against said judgment and decree of dismissal passed in said Title Suit No.96 of 1992 said findings remained as it is. As no appeal was preferred against said judgment and decree of dismissal passed in said Title Suit No.96 of 1992 said findings remained as it is. As such, present appellant plaintiff cannot bypass said observations of learned Court while dismissing Title Suit No.96 of 1992. 14. Record of right is not a document of title. Recording of entire 6 decimals of land in suit plot in favour of Hrishikesh in the record in 1950 in spite of selling at least part of it to Haripada in 1935 prima facie show that said recording had no basis. 15. Factually, it appears that though recorded owner Hrisikesh Dutta mentioned two cottahs 10 gondas of land (equivalent to 50 gondas) in the deed of 1934 through which land was sold to Haripada but it appears that subsequent transfers of said land came from Haripada to Nagarmal through a kobala dated 7.12.1935 then from Nagarmal to Ramabatar through a kobala dated 9.3.1956 wherein the area was described as seven decimals and from Ramabatar to the present contesting respondents through four deeds executed in 1979. It appears that though in the deed dated 7.12.1934 executed by Hrisikesh Dutta in favour of Haripada the area was described as two cottahs 10 gondas but the land was butted and bounded by boundaries. In all subsequent deeds the transferred lands were butted and bounded with same boundary. When the transferred land in a document of transfer is described by measurement as well as by boundary and if there is any question as to how much land was transferred through said document, the land covered by said boundary will prevail over the measurement of land given therein in absence of any evidence to the contrary. There is no evidence whatsoever to show that the land as described by boundary in the deed of transfer dated 7.12.1934 executed by Hrisikesh in favour of Haripada was restricted to two cottahs 10 gondas only and not the entire suit plot. There is no evidence whatsoever to show that the land as described by boundary in the deed of transfer dated 7.12.1934 executed by Hrisikesh in favour of Haripada was restricted to two cottahs 10 gondas only and not the entire suit plot. When it appears from the subsequent deeds that the lands were transferred covering entire suit plot and present contesting respondents being subsequent transferees possessed entire suit plot having a structure thereupon with four rooms let out to four different tenants and the present contesting respondents filed four different eviction suits against those four tenants and obtained eviction decrees in some of the eviction suits, then it has to be accepted that the title of the respondent defendants in the suit property was tested and established in Courts of law. In the alleged purchase deed of the present appellant the appellant was described as a continuing tenant in the room situated on the suit land but during evidence no scrap of paper was filed to show alleged tenancy under Siba Prasad Dutta before execution of said alleged deeds of purchase dated 27.01.1992. 16. The proposition of law as laid down in the cases referred by learned counsel for appellant plaintiff are not disputed but those case laws have no application as the facts of this case are quite different and distinct from the facts of those case laws. 17. Accordingly, I find and hold that the impugned judgment of learned Lower Appellate Court does not call for interference by this Court under Section 100 of the Code of Civil Procedure. 18. Accordingly, the appeal is hereby dismissed on contest without cost. 19. Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest. 20. Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.