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2014 DIGILAW 138 (CAL)

Bengudeb Sharma v. Mohini Mohan Debsharma

2014-02-21

PRASENJIT MANDAL

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Judgment : Prasenjit Mandal, J. This second appeal is at the instance of the plaintiffs and is directed against the judgment and decree dated July 25, 2005 passed by the learned District Judge, Dakshin Dinajpur in O.C. Appeal No.14 of 2004 thereby reversing the judgment and decree dated January 28, 2004 passed by the learned Civil Judge (Junior Division), Gangarampur in a partition suit being no.107 of 2002. The learned 1st Appellate Court has reversed the judgment and decree passed by the learned Trial Judge by the impugned judgment and decree. The plaintiffs/appellants herein filed the said suit for partition and other consequential reliefs. The defendants/respondents herein are contesting the said suit by filing a written statement denying the material allegations raised in the plaint. Upon consideration of the evidence on record, the learned Trial Judge has decreed the suit for partition in the preliminary form declaring the share of the plaintiffs and the defendant no.1 in the suit roperties. Being aggrieved, the defendants preferred an appeal which was allowed by the learned 1st Appellate Court thereby setting aside the judgment and decree of partition. At the time of admission of the second appeal, the following substantial question of law has been framed for decision:- “Whether the first Appellate Court committed substantial error in law in reversing the judgment and decree of the Learned trial Court.” Upon hearing the learned Counsel for the parties and on going through the material on record, I find that admittedly one Digam Dev Sharma was the original owner of the suit properties as described in the schedule to the plaint. Digam Dev Sharma had a daughter named Gamanbala and she had three sons namely the plaintiff no.1, the father of the plaintiff no.2 & 3 and defendant no.1. Thereafter, Gamanbala left the house of her father to stay with her husband. In the meantime, the suit properties had been recorded in the name of three sons of Gamanbala in the R.S. record of rights. Subsequently, Gamanbala filed a suit being Title Suit No.306 of 1979 in respect of the suit properties against the three sons before the learned Munsif , Raiganj for declaration of title and permanent injunction contending, inter alia, that she entrusted her eldest son to look after the suit properties and to record her name in the R.S. record of rights. Subsequently, Gamanbala filed a suit being Title Suit No.306 of 1979 in respect of the suit properties against the three sons before the learned Munsif , Raiganj for declaration of title and permanent injunction contending, inter alia, that she entrusted her eldest son to look after the suit properties and to record her name in the R.S. record of rights. Taking such advantage, he recorded the suit properties in the name of three brothers and the plaintiff no.1 and the father of the plaintiff no.2 tried to dispossess her and as such, she was compelled to file the said suit against her three sons making the defendant no.1 of the present suit as proforma defendant. The said suit was decreed in favour of the Gamanbala declaring her title and possession over the suit properties. In the meantime, by a deed of gift dated March 18, 1980, Gamanbala had transferred the entire suit properties in favour of the defendant no.1 of the present suit, i.e., during the pendency of the said suit. Being aggrieved by the judgment and decree of the said Title Suit No.306 of 1979, the plaintiff no.1 and the father of the plaintiff no.2 & 3 of the instant suit preferred an appeal being Title Appeal No.14 of 1987 which was also dismissed thereby affirming the judgment and decree passed by the learned Trial judge in Title Suit No.306 of 1979. The plaintiff no.1 and the father of the plaintiff no.2 & 3 of the instant suit had transferred certain portion of the suit properties in favour of the defendant no.2, 3 & 4 of the instant suit and those transferees instituted a suit being Title Suit No.168 of 1990 against the three sons of Gamanbala claiming their title over the property transferred. The said suit was dismissed on contests signifying that the transferors had no right, title and interest to transfer the portion of the suit properties in favour of the transferees as indicated above. The matter is not end there. The defendant no.2 of the instant suit filed a writ petition being W.P. No.807(W) of 1998 before this Hon’ble Court directing the B.L. & L.R.O. to give a hearing for recording the name of the defendant no.2 for purchase of the property and then, a proceeding being Misc. The matter is not end there. The defendant no.2 of the instant suit filed a writ petition being W.P. No.807(W) of 1998 before this Hon’ble Court directing the B.L. & L.R.O. to give a hearing for recording the name of the defendant no.2 for purchase of the property and then, a proceeding being Misc. Case No.8 dated September 13, 2001 under Section 50 of the West Bengal Land Reforms Act was started by the concerned B.L. & L.R.O. and the prayer of such transferees was also rejected. Thereafter, the R.S. record of rights was corrected in the name of Gamanbala for canceling the previous recording of the R.S. record of rights in view of the judgment of Title Suit No.306 of 1979 and thereafter, the Title Appeal No.14 of 1987. Form the above facts it is clear that after the execution of the deed of gift by Gamanbala in favour of the defendant no.1 of the instant suit, the donee had acquired right, title and interest in the entire suit properties and as such the donee had become the absolute owner of the suit properties. While arguing over the case, Mr. Anil Mukherjee, learned Advocate for the appellant has contended that according to a village deed the names of the three sons of Gamanbala were recorded in the R.S. record of rights. With due respect to him, in my view, this submission being contrary to the provision of Section 17 of the Indian Registration Act, no title can pass to the transferees on the basis of the village deed and so, record of rights in the name of three sons of Gamanbala cannot be stated to be correct and as noted above, such mistake had been rectified subsequently. The learned Advocate for the appellant has also contended that the plaintiff of the Title Suit No.306 of 1979 had transferred the suit properties in favour of the defendant no.1 of the instant suit by way of deed of gift dated March 18, 1980, i.e., during pendency of the suit and as such the said transfer comes within the mischief of Section 52 of the Transfer of Property Act and that no transfer shall be taken into consideration that has been made during the pendency of the suit without any order of the Court concerned. In this respect, in my view, the theory of lis pendens applies when the transfer is made with an ill motive to frustrate the passing of decree in the suit, but, to make a decree effective instead of frustrate the same, such restriction of transfer has been made, but, if transfer is made, it cannot be overlooked all together. Such transfer may remain subservient during the pendency of the suit and it may be taken into consideration at the time of final disposal of the suit. My findings get support from the decision of AIR 1990 Punjab & Haryana 347 particularly, the paragraph no.8, AIR 1956 SC 593 particularly, the paragraph no.25 and AIR 1973 SC 569 particularly, the paragraph no.32. For convenience, the paragraph no.8 of AIR 1990 Punjab & Haryana 347 is quoted below:- “The transfer when it falls within the mischief of this section will be deemed to be non est for the purposes of lis pendens. The transferor will be regarded as owner of the property notwithstanding that he has transferred it. However, there is nothing in this Section which can lead to the conclusion that the transfer pendente lite cannot be held valid and operative as between the parties thereto. This section does not wipe out the transaction altogether but makes it subservient to the rights based on the decree in the suit. This matter came up for consideration before the apex Court in Nagubai Ammal v. B. Shama Rao AIR 1956 SC 593 , wherein it was held as under (at p.602 of AIR): This contention gives no effect to the words “so as to affect the rights of any other party thereto under any decree or order which may be made therein”, which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto.” Similarly, for clear understanding the paragraph no.32 of the decision of AIR 1973 SC 569 is quoted below:- “It is evident that the doctrine, as stated in Section 52, applies not merely to actual transfers of rights which are subject-matter of litigation but to other dealings with it “by any party to the suit or proceeding, so as to affect the right of any other party thereto”. Hence, it could be urged that where it is not a party to the litigation but an outside agency, such as the tax Collecting authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation, the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.” As recorded above, Gamanbala won the suit both in the Trial Court as well as in the 1st Appellate Court and there was no second appeal and so, the said suit (T.S.306 of 1979) had reached the finality and so, it is binding upon the parties and that is why, the subsequent reliefs as sought for by the plaintiffs and the transferees from the plaintiffs had been turned down by the concerned Courts and the Revenue Authority as stated above signifying that the title of the plaintiff of the Title Suit No.306 of 1979 had been affirmed and so, by way of deed of gift, the defendant no.1 of the instant suit had become the absolute owner of the suit properties. Therefore, in my view, the contention of the appellant that by the principle of Section 52 of the Transfer of Property Act, the deed of gift has become void ab initio cannot be accepted rather it is my view that the defendant no.1 of the instant suit had acquired right, title and interest of the suit properties by the deed of gift. The plaintiffs of the instant suit, have taken another contention that they acquired title by way of adverse possession. In order to prove the contention of adverse possession there must be a clear evidence when the possession of the plaintiffs of the instant suit became adverse to the true owner and such contention must be proved by evidence describing that when the plaintiffs began to possess the suit properties adverse against the true owner. Moreover, there cannot be any plea of adverse possession against the co-owner at all. The learned 1st Appellate Court has rightly neglected this contention of the plaintiffs of the instant suit. So, in my view, there is no question of partition as contended by the plaintiffs of the instant suit. In view of the matter, I am of the opinion that the learned 1st Appellate Court has not committed any error of law at all in reversing the judgment and decree passed by the learned Trial Judge. Accordingly, in my view, there is no scope of interference with the judgment and decree passed by the learned 1st Appellate Court. The appeal is, therefore, devoid of merits and is, therefore, dismissed. Considering the circumstances, there will be no order to as costs.