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2013 DIGILAW 939 (CAL)

Bina Basak v. Bipul Kanti Basak

2013-12-18

TOUFIQUE UDDIN

body2013
JUDGMENT : Toufique Uddin, J. 1. This appeal arose out of judgment and decree passed by the learned Additional District Judge, 1st Court, Siliguri in O.C. Appeal No. 19s of 1999 reversing the judgment and decree dated 16.9.1999 and 23.9.1999 respectively passed by the learned Civil Judge, (Sr. Division), Siliguri in O.C. Suit No. 16 of 1983. 2. In the background of this appeal the fact in a nutshell is that O.C. No. 16 of 1983 was filed for declaration of title, recovery of possession injunction and other consequential reliefs by the plaintiff one Smt. Hemaprova Basak W/o Late Binod Behari Basak against Bimal Kanti Basak & Others. She claimed that he is the absolute owner of the Schedule 'A' property and is in possession thereof as described better in the Schedule appended to the plaint along with the building and structures standing thereon. The plaintiff was allotted the suit land by the Relief and Rehabilitation Department of Govt. of W.B. vide Memo No. 2231/RRG dated 5.12.53 by the Deputy Commissioner, Darjeeling. She took possession of the suit land from the Govt. of W.B. and submitted the building plan to the Municipality for construction of the building thereon. The Municipality approved the plan on 4.8.54 and the plaintiff constructed the building after obtaining House Building loan. Thereafter, the plaintiff submitted a revised plan in 1957 and after the plan was approved, the plaintiff constructed second phase of the structure and his name was duly recorded in the Municipal Corporation, Siliguri as the exclusive owner. In 1975, the Govt. of W.B. executed a lease deed dated 1.11.75 for a period of 99 years in favour of the plaintiff in confirmation of the allotment already made and the said lease deed was registered on 3.11.75. The defendants are the brothers of the plaintiff's husband Binod Behari Basak and they had no independent accommodation and accordingly they were given permission by the plaintiff to reside on a portion of the said property. The defendants were also maintained by the plaintiff's husband and the defendant continued to be permissive possessor of the 'B' schedule property under the plaintiff. In the meantime, the plaintiff's family grew up and the plaintiff required further accommodation to accommodate her family. In 1983, she requested the defendants to vacate the property but they did not. The defendants were also maintained by the plaintiff's husband and the defendant continued to be permissive possessor of the 'B' schedule property under the plaintiff. In the meantime, the plaintiff's family grew up and the plaintiff required further accommodation to accommodate her family. In 1983, she requested the defendants to vacate the property but they did not. The plaintiff issued a notice dated 4.2.83 to the defendants by a registered post revoking the license to occupy 'B' schedule property and directed the defendants to vacate but they did not comply. 3. The plaintiff amended the plaint particularly the prayer portion incorporating the prayers that the freehold Title deed allegedly granted in favour of the defendants are invalid, void and not binding upon the plaintiff. The Govt. of W.B. has no authority to ask the plaintiff to surrender the lease deed. 4. Initially, the suit was instituted by Smt. Hema Prova Basak, wife of late Binod Behari Basak against Bimal Kanti Basak and Benoy Kumar Basak. During the pendency of the suit Hema Prova Basak died and her legal heirs have been substituted by order dated 23.7.96. Similarly, Bimal Kanti Basak, defendant no. 1 died during the pendency of the suit and the legal heirs are substituted vide order dated 10.5.89. 5. The defendants contested the said suit by filing a combined written statement denying all material allegations inter-alia. The specific case of the defendants, however, is otherwise. They claimed that the plaintiff is not the owner of the suit land. The said land was allotted by the Government to the plaintiff along with other family members including the present defendants who came to Siliguri from the then East Pakistan in 1950 and the land was allotted in the name of plaintiff for the benefit of all family members. The husband of the family was the eldest brother of the defendants and he used to manage the affairs of the defendants at the relevant point of time. He worked as an employee in the office of the Deputy Commissioner, Darjeeling and also as Head Clerk in the office of the SDO, Siliguri and taking advantage of his official position, he managed to obtain papers in the name of plaintiff suppressing the material facts. It is further stated that the plaintiff was never a refugee. He worked as an employee in the office of the Deputy Commissioner, Darjeeling and also as Head Clerk in the office of the SDO, Siliguri and taking advantage of his official position, he managed to obtain papers in the name of plaintiff suppressing the material facts. It is further stated that the plaintiff was never a refugee. The building of the suit land was constructed out of the common fund for the benefit of all the family members including the defendants and the name of the plaintiff was entered fraudulently in the Municipal record and also in the record of the Government. The defendant came to know that the plaintiff has created all the documents in his name excluding the defendants and the lease deed which was subsequently prepared in the name of plaintiff was managed by her husband by misusing his official position. The defendant made several representations to the Govt. of W.B. (R.R. Dept.) for including the names of the defendants. The defendants specifically denied the plaintiff's case that the defendants are licensee under the plaintiff in respect of the suit land. The defendants claim right, title and interest in respect of the suit land and also by way of counter claim pray for declaration of their right, title and interest in the suit land. The defendants also pray for declaring that the lease deed dated 1.11.75 is invalid and inoperative. They prayed for giving direction to the Govt. of W.B. for execution of fresh lease deed in favour of the defendants in respect of the suit property. In the alternative, the defendants prayed for rectification of lease deed including the names of the defendants as lessees with equal right with that of plaintiff. 6. Upon the pleadings of the parties the following issues were framed for proper adjudication: (a) Is the suit maintainable in its present form? (b) Has the plaintiff any cause of action against the defendants? (c) Is the suit barred by law of limitation? (d) Is the suit hit by the principles of estopple, waiver and acquiescence? (e) Is the suit had for mis-joinder or nonjoinder of parties? (f) Was the suit land allotted for the benefit of all the members of plaintiff or to the plaintiff alone, a lessee for 99 years under State of West Bengal in respect of the suit land? (d) Is the suit hit by the principles of estopple, waiver and acquiescence? (e) Is the suit had for mis-joinder or nonjoinder of parties? (f) Was the suit land allotted for the benefit of all the members of plaintiff or to the plaintiff alone, a lessee for 99 years under State of West Bengal in respect of the suit land? (g) Was the house building loan obtained including the defendants and have the defendants any right, title and interest in the suit premises or any portion thereof? (h) Is the plaintiff as owner in possession of suit land and premises and was the deed executed in the name of the plaintiff suppressing all material facts and was the name of plaintiff entered into Municipal Register falsely and fraudulently? (i) Are the defendants in permissive occupation in a portion of suit premises particularly in 'B' schedule land of the plaint? (j) Have the defendants any right, title and interest in the suit land and premises or in any portion thereof? (k) Are the defendants entitled to the counter-claim made in the suit for them? (l) Is the plaintiff entitled to get a declaration of title to the property described in Schedule 'A' to the plaint? (m) Is the plaintiff entitled to get a decree for khas possession of the suit premises as described in the Schedule 'B' to the plaint? (n) To what other reliefs, if any, the plaintiff is entitled? 7. To contest this case, the plaintiff has examined two witnesses while the defendants examined 4 witnesses. 8. On trial, the learned trial Court dismissed the suit on contest and allowed the counter claim of the defendants by the judgment dated 16.9.99. 9. Being aggrieved by and dissatisfied with the judgment and decree that followed the judgment in O.C. No. 16 of 1983, the plaintiff preferred appeal being O.C. Appeal No. 19s of 1999, on the grounds that the learned Civil Judge, Sr. Division, Siliguri, Darjeeling erred both in law and fact and did not consider the materials in proper perspective and went beyond the jurisdiction of the case. And he committed grave mistake. 10. Division, Siliguri, Darjeeling erred both in law and fact and did not consider the materials in proper perspective and went beyond the jurisdiction of the case. And he committed grave mistake. 10. On hearing of both sides, the learned first appellate court reversed the judgment of the learned Trial Court and set aside the decree passed by the learned Court below and decreed the suit of the original plaintiff and dismissed the counter-claim lodged by the defendants by the impugned judgment dated 11.4.2003 passed in O.C. Appeal No. 19s of 1999. 11. Being aggrieved by dissatisfied with such judgment the present second appeal has been lodged before this Hon'ble court on the ground mentioned in the memorandum of appeal. 12. The following substantial questions of law have been formulated at the time of hearing. (i) Whether the learned appellate court below erred both in law and fact substantially in failing to appreciate that the suit plot of land had been allotted by the Refuge and Rehabilitation Department, Govt. of W.B. in the name of Smt. Hema Prova Basak, the original plaintiff as the refuge in 1953 not only for her interest but also for and the interest of her family members, the defendants following the principles of constructive trust, as provided in Section 94 of the Indian Trust Act (repealed by Benami Transaction Prohibition Act, 1988). (ii) Whether the learned Court below erred both in law and fact substantially in failing to appreciate that on a conjoint reading of Ext. C (affidavit of Benod Behari Basak), Ext. J (Affidavit of Hemaprova Basak), Ext. G (letter of the Deputy Commission regarding re-allotment to Hemaprova Basak), Ext. F (letter in the name of Hemaprova Basak, the allottee relating to sanction of building loan) and Exts. D and E (Govt. notifications as regards the mode of settlement) and read with Ext. A (enquiry report). Consequently, it would lead that the said plot of land had been allotted in the name of Hemaprova Basak, the defacto complainant, the defacto head for and in the interest of other family members, the defendants and thereby findings of the learned appellate court below in that regard are perverse and based on material irregularity. (iii) Whether the instant suit for declaration of title, instituted by Hemaprova Basak, the original plaintiff solely on the basis of the lease deed granted by the Refuge and Rehabilitation Department, Govt. (iii) Whether the instant suit for declaration of title, instituted by Hemaprova Basak, the original plaintiff solely on the basis of the lease deed granted by the Refuge and Rehabilitation Department, Govt. of W.B. in her name in conformity with the allotment of the plot of land in 1953 is sustainable in the eye of law in view of the present facts and circumstances? 13. With regard to the substantial questions of law the learned Counsel for the appellant argued as follows. 14. In this appeal the principle question is whether the said plot was allotted in favour of solely Hemaprova Basak, the original plaintiff or for the interest of the family members along with the defendants. Regarding this there is claim of the plaintiff vis-a-vis the denial of the defendants. The plaintiff claimed that the defendants are actually licensees and the plaintiff is actually the owner of the suit property. 15. The respective parties have adduced evidence and both the learned Courts below have discussed the nature of evidence. 16. The learned Counsel for the respondents first of all attacked the case of the appellants on the point of limitation and submitted that the learned trial Judge made a gross jurisdictional error to entertain the counter-claim. He submitted that the DW 1 disclosed in 1979 that the defendants came to know that R.R. Dept. executed the lease deed in favour of the plaintiff. The said defendant admitted that Ext. A as filed by him is the enquiry report and the enquiry behind such report was started on the basis of their letter dated 26.3.79. From the said report it is evident that the original defendants were well aware of the allotment of such plot in favour of the plaintiff and the husband of the plaintiff tried to oust them from the same. During cross-examination DW 1 admitted that the defendants were in possession of Ext. B. (The draft of a submission prepared by the husband of the plaintiff for allegedly submitting before the Vigilance Commission) since 1975. It is evident that the husband of the plaintiff disclosed allotment of the plot in the name of the plaintiff in the said draft. During cross-examination DW 1 admitted that the defendants were in possession of Ext. B. (The draft of a submission prepared by the husband of the plaintiff for allegedly submitting before the Vigilance Commission) since 1975. It is evident that the husband of the plaintiff disclosed allotment of the plot in the name of the plaintiff in the said draft. The defendants in 1975 came to know about the allotment of the suit property done in the name of the plaintiff in 1953-1954 and the defendants came to know in 1979 about the lease deed of 1975 in favour of the plaintiff. Learned counsel for the respondents argued that those two being admissions on the part of the defendants, the counter-claim of the defendants is barred by the law of limitation as the counter was filed in the learned Trial Court in O.C. suit No. 16/83 i.e. well after lapse of three years prescribed by Article 56 read with Section 3 of the Limitation Act. In support of his argument, the learned Counsel for the defendants referred to the decision of the case of V.M. Salgaonkar & Bros. v. Board of Trustees, reported in 2005 (4) SCC 613 . 17. Article 56 of the Limitation Act say the period of limitation is 3 years to declare the forgery of an instrument. According to Article 56 of the Limitation Act, 1963, the right to sue on an instrument on the ground of fraud exists for a period of three years from the date of knowledge of the execution of such instrument despite the defendants' admission of knowledge in respect of the execution of 1975 lease deed in 1979 extinguishing the defendants' right to sue under Section 27 of the Limitation Act. He submitted that the learned Court below made a gross error of law to decree the counter-claim. He further submits that in K. Narayanappa v. C. Reddy, (2008) 72 AIC 675 (A.P.) the Hon'ble Court held that the question of limitation even can be raised in second appeal. 18. Section 3 of the Limitation Act bars the suit appeal after the prescribed period of limitation. Section 5 of the Limitation Act enables court to jurisdiction in condoning delay. Section 27 of the Limitation Act extinguishes right of property in determination of the time limit. 18. Section 3 of the Limitation Act bars the suit appeal after the prescribed period of limitation. Section 5 of the Limitation Act enables court to jurisdiction in condoning delay. Section 27 of the Limitation Act extinguishes right of property in determination of the time limit. So, Section 3 and Section 27 of the said Act clearly show that the counter-claim is barred by limitation of three years prescribed in Article 56 of the Limitation Act. It is settled that the period of limitation is not dependent on the pleadings by either of the parties but left to be adjudicated upon the admitted facts and circumstances of the case. 19. On the other hand, the learned Counsel for the appellants submit that the counter-claim is not barred by limitation under Article 56 because Article 56 speaks that to declare forgery of an instrument issued or registered the period of limitation is three years from the date when the issue or registration became known to the plaintiff. But in the instant case, the defendants had not prayed for declaration of the forgery of the lease deed. In any event those issues are non est since the lease deed has already been cancelled by the Govt. of W.B. and the suit filed by Hemaprova Basak against the cancellation of the original lease deed has also been withdrawn. 20. Having heard both sides, I find substance in the argument of the learned Counsel for the respondents. The defendants while praying for cancellation of lease deed, standing in the name of the plaintiff raised question of fraud impliedly by stating that instead of all family members the plaintiff's husband by misusing his official position got the deed alone in her name. If neither of the parties takes the ground of limitation, yet it is incumbent upon the court to see if the claim is barred by limitation or not. In this regard, reliance may be put on 2005 (4) SCC 613 (supra). 21. Therefore, in my considered opinion, I think that the counter-claim was barred by limitation. 22. It was argued by the learned Counsel for the respondents that the formulation of laws as relied upon by the appellants are not at all substantial questions of law. In this regard, the learned Counsel made reference to the following decisions: (a) Sri Chinilal V. Mehta v. C.A. & M Co. 22. It was argued by the learned Counsel for the respondents that the formulation of laws as relied upon by the appellants are not at all substantial questions of law. In this regard, the learned Counsel made reference to the following decisions: (a) Sri Chinilal V. Mehta v. C.A. & M Co. Ltd. AIR 1962 Supreme Court 1314 (b) Mahindra & Mahindra Ltd. v. Union of India, 1979 (2) SCC 529 (c) Santosh Hazari v. Purshottam Tiwari, 2001 (1) Supreme 642 (d) Arumugham v. Sundarambal, AIR 1999 (4) SCC 350 23. In AIR 1962 Supreme Court 1314 (supra) the Hon'ble Apex Court held that the substantial questions of law is one which is of general importance or which directly and substantially affects the rights of the parties and which have not been finally settled by the Hon'ble Supreme Court, the Privy Council or the Federal Court or which is not free from difficulty or which calls for discussion of alternative views. 24. In AIR 1999 SCC 350 (supra) the Hon'ble Apex Court held that it is not permissible for the second appellate court to interfere with the findings of the first appellate court only on the ground that the first appellate court had not come to grip with the reasoning given by the appellate trial court. Here, the question of law formulated by the learned Counsel for the appellants appears to be question of facts which have been dealt with by the learned Courts below exhaustively. 25. Admittedly, the parties have migrated from the East Pakistan, now Bangladesh. It is further admitted position that the suit property was neither inherited not purchased by any of the parties. Rather, it transpires that the property has been settled with the plaintiff originally. Regarding this aspect of the matter, the appellants joined the issue by stating as to whether the suit property was allotted to Hemaprova Basak alone for her enjoyment or for the interest of her family members including the defendants as disclosed by her in the affidavit and other documents. In this regard, the question of interpretation of the word 'refugee' surfaces. The term 'refugee' has not been defined in any applicable law in the West Bengal. Rather, the term 'displaced person' has found place in West Bengal Development & Planning Act, 1948. In this regard, the question of interpretation of the word 'refugee' surfaces. The term 'refugee' has not been defined in any applicable law in the West Bengal. Rather, the term 'displaced person' has found place in West Bengal Development & Planning Act, 1948. It was passed with the object of providing for acquisition and development of land for public purposes and to rehabilitate the displaced persons. The Government also enacted the displaced persons (Claims Act, 1950). Section 2(d) of the said Act of 1948 defines public purposes and sub-section (1) thereof includes settlement of migrants to West Bengal who had to migrate on account of circumstances beyond their control. Section 2 subsection (b) of the said Act of 1950 defines 'displaced person'. In this regard, the learned Counsel for the respondents submits that the plaintiff got the allotment in her own capacity as a citizen after her migration to India. In this regard, he made a reference of Article 5 and 6 of the Constitution of India as to how citizenship is acquired and made a distinction that citizenship is a right of any individual. So, citizenship is singularistic and not pluralistic in nature. 26. It appears that Binod Behari Basak, the husband of the original plaintiff, Hemaprova Basak made an affidavit Ext. C naming the original defendants Bimal Kanti Basak and Binoy Krishna Basak, the brothers and family members therein. Those two persons now are claiming that they should be declared either co-owner of the suit property jointly with the plaintiff or they should be given separate allotment as owner of the suit property. The learned trial Judge placed much reliance on such affidavit but it is for other purpose. At the behest of the original plaintiff to accommodate only the original defendants in the suit property they were permitted to reside in the suit property since when they were minor. The original allotment granted in favour of the plaintiff in 1953 Ext. F' does not show anything that the defendants were to be treated as co-allottee's. Admittedly, the original allotment and the lease deed were in the name of Hemaprova Basak. Subsequently, that letter of allotment was confirmed in 1975 by another lease deed for a period of 99 years. It is correct that the lease deed cannot be equated with the deed of purchase. Subsequently, that letter of allotment was confirmed in 1975 by another lease deed for a period of 99 years. It is correct that the lease deed cannot be equated with the deed of purchase. In the case of former ownership lies with another person but in the case of later, the ownership goes to the transferee. Further, in the case of lease, the interest holder is the lessee. If the lessee has a good number of members either dependent on him or remaining with him as members of the family, they cannot be equated with the original lessee. The appellants relied upon much on the fact that from the documents executed by Hemaprova Basak as well as her husband, it is manifest that the defendants were members of the family. Even, if for argument's sake, it is accepted that the defendants are members of the family of Hemaprova Basak, still then, for reasons recorded herein, the defendants cannot claim that they are entitled to have equal rights and interest in the suit property along with the plaintiff. That apart, Ext. C inter-alia shows as many as 7 other members. Whether the other persons can inherit the lease property? The defendants carefully avoided the status of other members. 27. Above all, such affidavit does not appear to have been sworn in with reference to the present dispute. Rather it was in a different proceedings. The affidavit was sworn in by Binod Behari Basak on 30.12.52 whereas the letter of allotment originally was executed way back in 1953. There is no evidence that Benod Behari Basak affirmed the said affidavit as agent of the plaintiff or with authority from her. Further, in terms of Section 18 of the Evidence Act it is not admissible. 28. It further appears that learned Trial Court held that the documents submitted by the defendants ranging from Ext. A to Ext. O formed an unbroken chain of circumstances. A careful examination of the description of family as contained in affidavit of husband of the plaintiff Ext. C and that of plaintiff Ext. J shows that these two documents are not tallying each other. In Ext. J, Hemaprova Basak made a mention of only 5 members in 1953 whereas in Ext. C, her husband made a mention of 7 members. There is no evidence that there was any ill relation between the plaintiff and her husband. C and that of plaintiff Ext. J shows that these two documents are not tallying each other. In Ext. J, Hemaprova Basak made a mention of only 5 members in 1953 whereas in Ext. C, her husband made a mention of 7 members. There is no evidence that there was any ill relation between the plaintiff and her husband. So, why such difference of number of family members is not clear. The draft declaration of the husband of the plaintiff (Ext. B) puts a death nail into the case of the defendants. It shows that defendant No. 2 came to India in 1956. If this be so, then it is a bitter pill to swallow that he can be a beneficiary of the allotment made in 1953 for displaced person. 29. The circular Ext. D dated 23.4.81 stipulates that the beneficiaries are those who are named in the allotment register but such allotment register has not been produced. The other circular dated 2.7.81 Ext. E shows that the concerned authority was instructed for the correction of already made allotments/lease by adhering to Section 26 of the Specific Relief Act. But no action in terms of Section 26 of the Specific Relief Act appears to have been taken. Therefore, the subsequent decision of the authority Ext. N of negating the allotment in favour of the defendants being not in accordance with law and Ext. O direction to refund those are more in accordance with law and supportive of Government circular. 30. The learned Trial Court does not seem to have taken into account the purport of Sections 91, 92 and 94 of the Evidence Act. It was contended by the learned Counsel for the appellant that the learned appellate Court below could not appreciate the findings of the learned Trial Court upon the conjoint reading of the affidavit, Ext. C, affidavit of Binod Behari Basak, Ext. J, affidavit of Hemaprova Basak, Ext. G, letter of Deputy Commissioner, Ext. F, sanction of building plan, Ext. D and E, Government notification regarding mode of settlement. But Ext. A, the enquiry report and Ext. B are not admissible under Section 18 of the Evidence Act, as I think for reasons recorded above. C, affidavit of Binod Behari Basak, Ext. J, affidavit of Hemaprova Basak, Ext. G, letter of Deputy Commissioner, Ext. F, sanction of building plan, Ext. D and E, Government notification regarding mode of settlement. But Ext. A, the enquiry report and Ext. B are not admissible under Section 18 of the Evidence Act, as I think for reasons recorded above. The affidavit of Hemaprova Basak being the best evidence under Section 91 of the Evidence Act having been clearly made to obtain refugee certificate, the appellants are debarred from giving any oral evidence contrary to the contents thereof as provided by Section 92 of the Evidence Act. 31. Similarly, the letter of allotment by the Commissioner as also the enquiry report produced in different cases, having no reference in the particular case, breaking the alleged chain of circumstances cannot be considered as a substantial question of law, warranting interference by this court. 32. The lease deed as submitted by the plaintiff is the best evidence under Section 91 of the Evidence Act. The learned Trial Judge appeared to have misconstrued the spirit of Section 94 of the Evidence Act. The appellants claimed themselves to be party and beneficiary to the said lease deed. In view of the provisions as stated above, the defendants are debarred from adducing any oral evidence or any other evidence contrary to the same of the said lease deed in absence of any evidence of ambiguity. Oral evidence cannot displace the contents of the documents itself. A man may lie but a document will not. 33. The lease deed sets the matter at rest when ex facie on a plain reading and adhering to the principle of 'literal interpretation', it appears that the lease deed was given in the name of the single person Hemaprova Basak. A lessee may have many family members but necessarily the lease deed could not be in the name of all when it is not the case of the lessee that the lease was given to her for the benefit of all family members including herself. 34. The circulars as issued by the Government of West Bengal cannot take away the substantive right of the plaintiff already granted in 1953 and upgraded in 1975. It must be prospective. We may refer to State of M.P. & Others v. Rameswar Rathod, reported in (1990) 4 SCC 21 . 34. The circulars as issued by the Government of West Bengal cannot take away the substantive right of the plaintiff already granted in 1953 and upgraded in 1975. It must be prospective. We may refer to State of M.P. & Others v. Rameswar Rathod, reported in (1990) 4 SCC 21 . Also Reliance may be put on in the case of CMD/Chairman, BSNL & Others v. Misrilal & Others, (2011) 3 Supreme 249 wherein the Hon'ble court held that the rules made under Article 309 (proviso) of the Constitution of India can be amended with the retrospective effect. Only vested constitutional right cannot be taken away by amendment of rules. In case of conflict law prevails over equity. Needless to mention, before 44th Amendment taking place on 20.6.79, the right of land was fundamental right under Article 19(f) of the Constitution of India. By way of the Constitution Amendment Act, 1978 coming into force on 20.6.79 the right of land was changed in terms of Article 300 of the Constitution of India which reads that "no person shall be deprived of his property save by authority of law." It is a constitutional and statutory right. Under Section 26 of the Specific Relief Act, 1963, the lease document may be altered only by way of judicial pronouncement of the suit and such suit being barred as per Article 56 of the Limitation Act after three years the Government authority rightly did not initiate any administrative instruction for change of allotment of 1953 in favour of the plaintiff. 35. The appellants pleaded in their counterclaim that the plaintiff is not refugee and the allotment given should be construed to the fact that the plaintiff was a trustee on behalf of the defendants. Only in alternative prayer therein they prayed that the allotment being construed to be made in favour of the plaintiff and defendants in equal share but no W.S. to that alternative prayer could have been made except denial. The defence adduced both verbal and documentary evidence to establish the matter. But the original pleading has no basis at all. The citizenship being right of an individual cannot be made dependent on a citizenship of husband. 36. The defence adduced both verbal and documentary evidence to establish the matter. But the original pleading has no basis at all. The citizenship being right of an individual cannot be made dependent on a citizenship of husband. 36. The defendants attempted to make State as a necessary party but that issue has been settled once for all when I find that the battle carried up to the Division Bench of this Hon'ble court met with the result of failure. 37. Perpetual lease is always considered to be better right in comparison to licence i.e. allotment. As such, there is nothing wrong if better title/right and interest in respect of property is created in lease. The record shows that the pending disposal of the suit filed by the plaintiff without taking recourse to any legal action, the authority cancelled the lease in favour of the plaintiff and instead executed fresh freehold title deeds in favour of defendants leaving one to be executed in the name of the plaintiff. 38. The plaintiff instituted a separate suit against such arbitrary action of government. But the competent authority i.e. the Government has already cancelled the free-hold title deeds. Therefore, the plaintiff withdrew the said second suit. The plaintiff submitted 7 documents viz. the lease deed dated 3.11.75, Ext. 1, notice to certificate-debtor, requisition for repayment of loan and certificate of public demand, Ext. 2, hearing notice given by the SDO, R.R. Dept. to the to the plaintiff for conferment of right, title and interest Ext. 3, Municipal Tax receipt plan, Ext. 4, Ext. 5, lawyer's letter Ext. 6 and A/D. Ext. 7. These documents are of clear and unimpeachable character. 39. There is no iota of evidence barring claim of defendant that the construction of house was done allegedly out of the joint family fund on the suit property. But nowhere it is seen that for the benefit and enjoyment of all the members, the original allotment was made to the plaintiff in 1953 which was upgraded in 1975 in the form of a lease deed. The language of the affidavit of Hemaprova Basak which was sworn in by her for the purpose of grant of refugee certificate does not disclose anything that on the basis of such affidavit allotment/grant of lease was obtained by her or it was for all family members. The language of the affidavit of Hemaprova Basak which was sworn in by her for the purpose of grant of refugee certificate does not disclose anything that on the basis of such affidavit allotment/grant of lease was obtained by her or it was for all family members. It may be that the parties had property at erstwhile Pakistan but that does not mean that on the suit property construction was done out of common family fund for all the members. A substantive right was already created in favour the plaintiff in 1953 followed by the lease deed of 1975. 40. It was contended by the learned Counsel for the appellants with reference to the affidavit of Hemaprova Basak, Ext J that the land was allotted in the interest of the family members of Hemaprova Basak since they were refugee. He submitted that Binod Behari Basak, husband of Hemaprova Basak, the original plaintiff, admittedly had not migrated to the West Bengal under circumstances beyond their control since he joined service in Darjeeling before partition on 1.3.45. In this regard, I do not find any record that the plaintiff Hemaprova Basak used to reside with her husband since 1945 and she actually did not come over to India in 1953. A husband may be in service, but he is a person. The wife is a different person. The status of the husband cannot be equated with that of the wife. We are concerned with the allotment given to the plaintiff. From the facts and circumstances of the given case as discussed above, it is seen that the allotment was made not for all the family members. 41. The case of the plaintiff was that the defendants were licensees. The defendants came over to India well after 1953. It is not expected that they were supposed to be the beneficiary of the allotment made in 1953 in favour of the plaintiff. The defendants claimed that they contributed money out of joint family fund accumulated through sale of agricultural land of Jalpaiguri and disposal of paternal property at Pakistan at the time of construction of the building. But the record shows that the plaintiff took house building loan whereas the defendants could not show any paper that through sale of such property they contributed out of the common nucleus fund at the time of construction of the house on suit property. But the record shows that the plaintiff took house building loan whereas the defendants could not show any paper that through sale of such property they contributed out of the common nucleus fund at the time of construction of the house on suit property. Moreover, both parties are governed by Dayabhaga School of Hindu Law. So, the concept of joint family is not applicable. 42. The learned Counsel for the appellants placed reliance on the decision as reported in 2004 (6) SCC 455 in the case of Ramji Purushottam & Another v. Laxman Bhai D Kurlawala & Another. Therein the Hon'ble court while interpreting a statute propounded that law coming into force during the pendency of the proceedings being applied on the date of judgment to pre-existing facts for the purpose of giving benefit to the said law which came into force to the party concerned in the pending proceedings is not retroactivity. 43. The learned Counsel for the appellants further referred to another decision of Sri Chand Gupta v. Gulzar Singh & Others, reported in AIR 1999 SC 123. Both the decisions appear to be inapplicable here. 44. The original defendants were served with notice to quit the suit property. They contended that their 'boudi' (sister-in-law) was the 'karta' and for the benefit of them the allotment of suit land was made in the name of the plaintiff only. But on attaining majority or before serving of notice to quit, they were dormant. The record shows that they remained silent simply relying on their boudi without making any attempt to get some documents in their name. It is opposed to human behaviour. 45. It was, however, contended by the learned Counsel for the appellants that the grant of allotment in the name of the plaintiff was irrevocable. But the allotment is not at all a grant. Without any authority any declaration of the plaintiff's husband is not binding upon the plaintiff as the lease is not between the plaintiff's husband and the Government but between the plaintiff and the government. 46. This being the position, I do not find any reasonable ground to interfere with the findings of the learned first appellate court. 47. Accordingly, this second appeal stands dismissed. 48. I pass no order as to costs in view of the circumstances of the case. 49. 46. This being the position, I do not find any reasonable ground to interfere with the findings of the learned first appellate court. 47. Accordingly, this second appeal stands dismissed. 48. I pass no order as to costs in view of the circumstances of the case. 49. Let a copy of this judgment along with the LCR be sent down to the learned court below immediately with a direction to take necessary action. 50. Upon appropriate Applications being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions. Appeal is dismissed.