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2013 DIGILAW 724 (CAL)

Gopal Chakraborty v. Sk. Rafique Rahaman

2013-09-25

TARUN KUMAR GUPTA

body2013
JUDGMENT : Tarun Kumar Gupta, J. This application under Article 227 of the Constitution of India is directed against judgment dated 24th of February, 2011 passed by Additional District Judge, 6th Court, Alipore, District-24 Parganas (South) in Misc. Appeal No. 231 of 2006 affirming order dated 10th of April, 2006 passed by learned Civil Judge (Senior Division), 10th Court Alipore in Misc. Case No. 4 of 2003. 2. The petitioners' case may be summarised as follows:- The entire premises No. 18, 18/1, 18/2 and 18/3 measuring about 23 cottahs more or less comprised one holding under Kolkata Municipal record originally belonged to Kalipada Mukherjee and his two brothers. The present petitioners being refugees came to Kolkata during 1947-48 and occupied 5 cottahs of land out of said 23 cottahs of land. They also obtained necessary permission from Kalipada Mukherjee and his brothers. One Safi Seikh Mansur Ali claiming himself as Mutwalli of Haqquane Anjuman Wakf Estate alleged to purchase 18 cottahs of land of premises No. 18 from Kalipada Mukherjee and his brothers and filed a Title Suit being No. 2 of 1962 praying for recovery of possession of 11 cottahs of land out of said 18 cottahs of land from trespassers. He obtained a decree in said Title Suit No. 2 of 1962. An execution case being Title Execution Case No. 32 of 1965 was filed for recovery of possession of said 11 cottahs of land from the trespassers being defendants of said suit. At the time of execution of said decree the present petitioners were tried to be dispossessed from their possession. They resisted the decree and filed one case being Misc. Case No. 4 of 2003 under Order 21 Rule 97, 98, 99, 100, 101, 102 and 103 read with Section 151 of the Code of Civil Procedure. They also filed one application under Order 27 Rule 9 of the Code of Civil Procedure for appointment of a survey passed advocate commissioner for repayment of the suit property vis-a-vis the property under the possession of the petitioners. Learned trial court dismissed the said Misc. Case by order dated 10th of April, 2006. An appeal being Misc. Appeal No. 231 of 2006 was filed but the same was also dismissed by the order impugned dated 24th of February, 2011. Hence, is this revisional application. Learned trial court dismissed the said Misc. Case by order dated 10th of April, 2006. An appeal being Misc. Appeal No. 231 of 2006 was filed but the same was also dismissed by the order impugned dated 24th of February, 2011. Hence, is this revisional application. The substituted plaintiff filed a written objection alleging inter alia that the original plaintiff purchased the entire premises No. 18 Bagmari Road being well demarcated property having area of 18 cottahs of land though it was wrongly mentioned in the deed as 23 cottahs of land. Said property was purchased from the admitted owner Kalipada Mukherjee and his two brothers under three separate deeds and as some squatters were illegally occupying 11 cottahs of land, one suit being Title Suit No. 2 of 1962 was filed for recovery of possession of said portion of suit property which was decreed after contested hearing. Long back the execution case being Title Execution Case No. 32 of 1963 was filed. Premises Nos. 18/1, 18/2, and 18/3 Bagmari Road are imaginary premises numbers. Present petitioners never occupied any portion of premises No. 18 and they were set up by the judgment debtors to stall the execution of the decree. 3. Learned trial court dismissed the Misc. Case as well as the application filed under Order 26 Rule 9 of the Code of Civil Procedure by an order dated 10th of April, 2006 after taking evidence and considering materials on record. The present petitioners filed an appeal being Misc. Appeal No. 231 of 2006 which was also dismissed by the order impugned after contested hearing. 4. Mr. Sankar Nath Dhar, learned counsel for the petitioners, submits that out of 23 cottahs of land 18 cottahs of land having no demarcation/boundary was purchased by the original plaintiff and that at the time of execution of the decree of said Title Suit No. 2 of 1962 present petitioners being in occupation of remaining 5 cottahs of land in premises No. 18/1, 18/2, and 18/3 Bagmari Road cannot be permitted to be dispossessed. In this connection he further submits that for ascertaining the exact area of the suit property as well as the location of the possessed land of the present petitioners an advocate commissioner was required to be appointed for survey of those property. In this connection he further submits that for ascertaining the exact area of the suit property as well as the location of the possessed land of the present petitioners an advocate commissioner was required to be appointed for survey of those property. He next submits that the present petitioners started to possess said land with the permission of Mukherjee brothers and that after their alleged transfer of 18 cottahs of land to the plaintiff of Title Suit No. 32 of 1963 the possession of the present petitioners became adverse to the purchaser. In support of his contention he has referred a case law reported in AIR 1931 Madras page 216, Chinnan and others v. Ranjithammal. According to him, learned courts below failed to appreciate these basic principles of law and thereby committed gross injustice. He accordingly prays for setting aside the order impugned of the learned appeal court. 5. Mr. Sahidullah Munshi, learned counsel appearing for the O.P., on the other hand, submits that the petitioners failed to establish either granting of licence by Mukherjee and brothers or existence of premises No. 18/1, 18/2 and 18/3 Bagmari Road wherein they claimed to reside. He next submits that it was proved during evidence that the suit premises No. 18 Bagmari Road was measured around 18 cottahs though it was wrongly noted in the deed as 23 cottahs of land and that question of leaving aside 5 cottahs of premises No. 18 Bagmari Road after said sale by Kalipada Mukherjee and his brothers to the plaintiff of Title Suit No. 2 of 1962 did not arise. 6. Mr. Munshi next submits that the concurrent findings of fact of both the courts below should not be disturbed by this court while exercising the limited jurisdiction under Article 227 of the Constitution of India. In support of his contention he has referred case laws reported in AIR 1991 SC 1494 , Mani Nariman Daruwala and Bharucha and others v. Phiroz N. Bhatena and others and AIR 2000 SC 3495 , Khimji Vidhu v. Premier High School. 7. It appears that during hearing of said Misc. Case the petitioners examined three witnesses namely Sri Gopal Chakraborty, Sri Sankar Pal and Smt. Sima Das as P.W. 1, P.W. 2 and P.W. 3 and also exhibited certain documents which were marked (Ext. 1-7). 7. It appears that during hearing of said Misc. Case the petitioners examined three witnesses namely Sri Gopal Chakraborty, Sri Sankar Pal and Smt. Sima Das as P.W. 1, P.W. 2 and P.W. 3 and also exhibited certain documents which were marked (Ext. 1-7). The O.P. in support of his case has adduced oral evidence of one Sarafat Hossain as O.P.W. 1 and exhibited certain documents which were marked as Ext.A 2-M 4. It came out from the oral and documentary evidence that the original plaintiff of Title Suit No. 2 of 1962 purchased entire share of Shri Kalipada Mukherjee and his two brothers through three different kobalas. It also appears that the plaintiff purchaser also purchased the structures of the thika tenancies situated at premises No. 18 Bagmari Road by which there was merger of owners' interest and thika tenants' interest and thereby the plaintiff decree holder became the owners of the huts standing on premises No. 18 Bagmari Road. It appears from the exhibited documents that plaintiff decree holder purchased the huts being numbered as 18 H/1, 18 H/2 and 18 H/3 Bagmari Road and that his name was recorded as owners of those huts in the official record. It appears that the learned trial court has marshalled the entire evidence on record, both oral and documentary, and came to a finding of fact that plaintiff decree holder purchased entire 18 cottahs of land in suit premises 18 Bagmari Road and that the actual area of said suit property was 18 cottahs and not 23 cottahs and that there was no existence of premises No. 18/1, 18/2 and 18/3 Bagmari Road though there were huts having No. 18 H/1, 18 H/2, and 18 H/3 within premises No. 18 Bagmari Road and that the plaintiff decree holder also purchased those structures. Neither from the oral nor from the documentary evidence of the petitioners it can be ascertained that there was existence of any independent premises being numbered 18/1, 18/2 and 18/3 Bagmari Road. Learned trial Judge already observed that Smt. Sima Das (P.W. 3) also admitted during her evidence that she along with others filed said Misc. case being instructed by the defendants of Title Suit No. 2 of 1962 who are their neighbours. Learned trial Judge already observed that Smt. Sima Das (P.W. 3) also admitted during her evidence that she along with others filed said Misc. case being instructed by the defendants of Title Suit No. 2 of 1962 who are their neighbours. Learned trial court also observed that mere production of ration card and voter identity card does not ipso facto show possession of the suit premises by the petitioners. There is no doubt that even if there was any possession or long possession in a property the same cannot by itself create title in said property in absence of specific proof of possession of the same openly and adversely to the interest of the true owner. In the case in hand, the petitioners tried to establish their alleged long possession in premises No. 18/1, 18/2 and 18/3 Bagmari Road measuring about 5 cottahs of land but it came out that there was no existence of those premises in the municipal record. Under the facts and circumstances the ratio of the case law as referred by learned counsel for the petitioner has no relevancy. 8. Admittedly, learned appellate court has also concurred with those factual findings of learned trial court. Those concurrent findings of fact are found to be based on evidence. There is nothing on record to show that said concurrent findings of fact were misconceived. Under these facts and circumstances I find that there is hardly any scope of interference in the order impugned by invoking the extraordinary power under Article 227 of the Constitution of India. 9. As a result, the revisional application is hereby dismissed on contest. However, I pass no order as to costs. 10. As the execution case is pending since 1963 learned executing court is hereby directed to take all necessary effective steps for disposing of the execution case as per law within three months from the date of communication of the order. Application Dismissed.