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2014 DIGILAW 174 (CAL)

Abdul Samad Sanfui v. Joynal Sanfui

2014-03-03

DEBANGSU BASAK

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Judgment : Debangsu Basak, J. A suit for declaration of title and in the alternative for partition of immovable properties was dismissed by the Trial Court on November 15, 1997. The appeal therefrom was dismissed on October 8, 1999. The second appeal was admitted and two substantial questions of law were framed by an Order dated May 9, 2000. Golam Sapui was the original owner of the suit property along with some other properties. Golam Sapui was survived by his son Rahamat Sapui and his daughter Golerjan Bibi. The suit property was erroneously recorded in the Revenue Survey Record of Rights in the name of Rahamat Sapui. On the basis of such record of rights, Rahamat Sapui refused to give the legitimate share to Golerjan Bibi. Golerjan Bibi thereafter, filed Title Suit No. 122 of 1963 in the 1st Court of Munsif, Baruipore for declaration of title and partition. In that suit Rahamat Sapui was Defendant No. 29. Rahamat Sapui appeared in the suit and entered into a compromise with Golerjan Bibi. Title Suit No. 122 of 1963 was disposed of as decreed on compromise. The compromise decree declared Golerjan Bibi to be the owner of 8 decimal of land in Khatian No. 37. Golerjan Bibi sold 8 decimal of land in Plot No. 136 of Khatian No. 37 to the plaintiff by a registered deed of conveyance dated March 12, 1963. Consequent to such purchase the plaintiff came into possession and constructed three rooms and planted several trees on such land. The plaintiff claimed to be possession of the said land and enjoying the usufructs of the trees. The plaintiff, therefore, instituted Title Suit No. 126 of 1995 against the descendants of Rahamat Sapui. The Trial Court and the Appeal Court having found against the plaintiff, the present second appeal was preferred where two substantial questions of law were framed. The factum of the decree dated April 25, 1963 passed in Title Suit No. 122 of 1963 was an admitted fact. Such admission appeared lastly in the Order dated May 9, 2000 which framed two substantial questions of law. The Order dated May 9, 2000 was passed in presence of the parties. It was submitted on behalf of the plaintiff that, both the Courts misread and misconstrued the decree passed in Title Suit No. 122 of 1963. Such admission appeared lastly in the Order dated May 9, 2000 which framed two substantial questions of law. The Order dated May 9, 2000 was passed in presence of the parties. It was submitted on behalf of the plaintiff that, both the Courts misread and misconstrued the decree passed in Title Suit No. 122 of 1963. Both the Courts failed to appreciate that, the decree passed in Title Suit No. 122 of 1963 was valid and was binding on the parties to such suit. There was no challenge to the decree dated April 25, 1963 passed in Title Suit No. 122 of 1963. In absence of the decree dated April 25, 1963 passed in Title Suit No. 122 of 1963 being set aside by a Court of competent jurisdiction, such decree was binding on the parties. The plaintiff in the present suit was claiming title through Golerjan Bibi who was the plaintiff in Title Suit No. 122 of 1963. The defendants in the present suit were the descendants of Rahamat Sapui who was the Defendant No. 29 in Title Suit No. 122 of 1963. The decree dated April 25, 1963 was binding on the defendants of Title Suit No. 126 of 1995. The plaintiff next contended that, the plaintiff was entitled to the decree of declaration as prayed for. The remaining prayers of the suit were in the alternative to the first prayer of declaration. In the event the first prayer of declaration was granted the remaining prayers need not be considered and granted. On behalf of the defendants it was contended that, both the Courts below rightly appreciated the value of the decree dated April 25, 1963 passed in Title Suit No. 122 of 1963. According to the defendants, the decree dated April 25, 1963 was not binding as the same was obtained by fraud. Golerjan Bibi did not have right, title and interest in respect of the suit property. The property involved in Title Suit No. 122 of 1963 and the present suit were different. The defendants challenged the decree dated April 29, 1963 in the written statement. The defendants claimed that the Courts rightly refused to pass any decree in the suit. I have considered the rival contentions of the parties and perused the materials on record. Golerjan Bibi filed Title Suit No. 122 of 1963 and sought declaration of title in respect of various immovable properties. The defendants claimed that the Courts rightly refused to pass any decree in the suit. I have considered the rival contentions of the parties and perused the materials on record. Golerjan Bibi filed Title Suit No. 122 of 1963 and sought declaration of title in respect of various immovable properties. There were a number of defendants in such suit. Rahamat Sapui was one of the defendants being the Defendant No. 29. The suit was decreed on compromise between Golerjan Bibi and Rahamat Sapui on April 29, 1963. The plaintiff in the instant suit purchased the suit property from Golerjan Bibi by a registered deed of conveyance dated March 12, 1963. The property purchased by the present plaintiff was a portion of the suit property involved in Title Suit No. 122 of 1963. The defendants in the present suit were the descendants of Rahamat Sapui. The defendants, therefore, would not have any right, title and interest in respect of the suit property which was higher or better than that of Rahamat Sapui. Such is not the case of the defendants also. As descendants of Rahamat Sapui the defendants in the instant suit were bound by the decree dated April 25, 1963 passed in Title Suit No. 122 of 1963. The plaintiff of the instant suit was claiming title through Golerjan Bibi. Golerjan Bibi was declared as the owner of the suit property amongst other properties in Title Suit No. 122 of 1963. The plaintiff, therefore, were in a position to establish title as against the defendants in the instant suit. The lower Appellate Court found that the statements made in the plaint to be vague, indefinite and inconsistent with the other parts of the plaint and the evidence adduced. The lower Appellate Court also doubted the similarity between the properties invoked in the present suit with that involved in the previous suit. The prayers of the plaint were also found not be legal, valid and proper and rather inconsistent. The lower Appellate found the plaintiff to have failed in proving title. The plaint averments proceeded to state that Golam Sapui was the owner of the suit property along with other properties. Golam Sapui died and was survived by Rahamat Sapui and Golerjan Bibi. Rahamat Sapui got his name recorded in the Revenue Survey Record of Rights wrongly in respect of the entire property of Golam Sapui. The plaint averments proceeded to state that Golam Sapui was the owner of the suit property along with other properties. Golam Sapui died and was survived by Rahamat Sapui and Golerjan Bibi. Rahamat Sapui got his name recorded in the Revenue Survey Record of Rights wrongly in respect of the entire property of Golam Sapui. On the basis of such wrong recording Rahamat Sapui refused to give the legitimate share of such properties to Golerjan Bibi. Golerjan Bibi then filed a suit for declaration and partition being Title Suit No. 122 of 1963. In such suit Rahamat Sapui was the Defendant No. 29. Such suit was decreed on compromise. Prior to such compromise decree Golerjan Bibi sold 8 decimal of land to the plaintiff on March 12, 1963. The plaintiff constructed 3 rooms and planted trees on such land and was enjoying the usufructs. The defendants did not have any right, title and interest in the suit property. They were not in possession. The plaintiff was in possession of the suit property through his tenant. The defendants were the descendants of Rahamat Sapui. The defendants threatened the plaintiff that they would take possession of the suit property on September 10, 1995 necessitating the plaintiff toinstitute the suit. The averments of the plaint were plain, clear and established a cause of action for the plaintiff to seek relief of declaration and alternatively partition. The relief of declaration and in the alternative partition could not be termed as inconsistent given the nature of relationship between the parties to the suit. Since the parties to the suit were from the common ancestor, in t he event, the Court held that, the plaintiff was not entitled to the declaration as sought for, the plaintiff could be granted the relief of partition. The evidence adduced was consistent with the case of the plaintiff. The compromise decree was marked as an exhibit. The compromise decree itself allowed the plaintiff the first relief sought. On grant of such relief, the plaintiff became disentitled to any other relief in the suit. The suit property involved was a portion of the properties involved in the compromise decree dated April 25, 1963. It could be contended that, since the conveyance was dated March 12, 1963, Golerjan Bibi was not the owner of the suit property when the compromise was entered into on April 25, 1963. The suit property involved was a portion of the properties involved in the compromise decree dated April 25, 1963. It could be contended that, since the conveyance was dated March 12, 1963, Golerjan Bibi was not the owner of the suit property when the compromise was entered into on April 25, 1963. Such point was, however, in my opinion, not available to the descendants of Rahamat Sapui. Rahamat Sapui was the Defendant No. 29 in Title Suit No. 122 of 1963. The compromise decree passed in Title Suit No. 122 of 1963 was at the instance of Golerjan Bibi as the plaintiff and Rahamat Sapui as the Defendant No. 29. Such compromise decree included the suit property. Therefore, this point was not available to the descendants of Rahamat Sapui. The Courts below erred in arriving at a finding that the decree dated April 25, 1963 was not binding. The decree dated April 25, 1963 was not under challenge in any appropriate proceedings. Unless such decree was set aside by a competent Court, the same remained binding. It was not established that the decree dated April 25, 1963 was a nullity. Both the Courts below erred in returning a finding that such decree was illegal and fictitious. In the facts and circumstances of the instant case the plaintiff was entitled to a decree in terms of prayer (a) of the plaint. In the premises, the second appeal is allowed. The impugned judgment and order is set aside. The suit is decreed in terms of prayer (a) of the plaint. There will be no order as to costs. S.A. No. 512 of 2000 is disposed of accordingly.