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2014 DIGILAW 191 (TRI)

Nityananda Debnath v. Pranati Debnath

2014-05-27

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- Judgment and decree dated 23.02.2007 and 26.03.2007 respectively delivered in Title Appeal No. 53 of 2006 by the Additional Sessions Judge, Kailashahar, North Tripura has been questioned in this appeal filed under Section 100 of the C.P.C. 2. By the order dated 08.06.2007, this appeal was admitted formulating as many as 6(six) substantial questions of law with observation that further substantial questions of law might be framed for adjudication after hearing the learned counsel for the parties. In the course of hearing, no other substantial question of law has been urged for the parties. 3. On scrutiny of the records and after hearing the submissions advanced by the learned counsel for the parties, it appears that if the following questions are decided, the substantial questions of law as formulated would be adequately addressed: (i) Whether the statement available in the recital of Exbt. 3 (the sale deed No. 1-2962 dated 22.06.1979 exhibited by Kamini Mohan Debnath, predecessor of the respondents) that ’amar bhratar sange biloy chinnha batwara mate barnita bhumi mudiyo anghso prapta hoiya nirbibade bhog dakhal o bhug sashan kariya ashitechi’ (after partition with my brother by metes and bounds the land demised hereunder having devolved to me I was enjoying the possession and control by way of possession without any intervention) has evidenced the joint property and the partition thereof? and (ii) whether that statement as to the joint property and partition thereof, as a matter of fact, has been proved by the plaintiffs? 4. Even though it has been stated in the memorandum of appeal that the impugned judgment has reversed the judgment of the trial court but a reading of those judgments would prove that the impugned judgment passed by the first appellate court has affirmed the findings of the trial court, except the finding as regards the title of the plaintiffs over a piece of land admeasuring 0.29 acres by dint of the registered sale deed, Exbt. 3. The concurrent finding of the courts below may be encapsuled for providing the backdrop of the dispute. Kamini Mohan Debnath, the predecessor of the defendants came as the refugee from East Pakistan to take shelter in this State. In due course, he was favoured with a piece of land admeasuring 0.58 acres. The said allotted land was recorded in Khatian No. 1317 of Mouza-Pabiacherra, Exbt. A. Thereafter, by Exbt. Kamini Mohan Debnath, the predecessor of the defendants came as the refugee from East Pakistan to take shelter in this State. In due course, he was favoured with a piece of land admeasuring 0.58 acres. The said allotted land was recorded in Khatian No. 1317 of Mouza-Pabiacherra, Exbt. A. Thereafter, by Exbt. 3, a part of the land of the northern boundary admeasuring 0.29 acres was sold to Sashimohan Debnath, his full blood brother. In terms of Exbt. 3, the name of Sashimohan Debnath, the predecessor of the plaintiffs was mutated in the record of rights. After death of Kamini Mohan Debnath, by means of MR case No. 335/1996, the entire land had been recorded in the name of Sashimohan Debnath in Khatian No. 695, part of Exbt. 1 series. The defendants as the legal heirs of Kamini Mohan Debnath had prayed for cancellation of the records created by way of mutation in terms of MR case No. 335/1996 and for recording the land admeasuring 0.29 acres of Khatian No. 132 of Mouza Pabiacherra in their name as they had admitted that their predecessor had transferred a piece of land admeasuring 0.29 acres from the total land of 0.58 acres pertaining to Khatian No. 132, Mouza-Pabiacherra, C.S. Plot No. 275 and 276. On inquiry the District Collector, Kailashahar by the order dated 11.03.2002 has observed that the records of right is required to be altered. However, while the proceeding under Section 95 Tripura Land Revenue and Land Reforms Act, 1960 was inconclusive, the plaintiffs filed the suit being Title Suit No. 01 of 2002, wherefrom this appeal originates. Accordingly, the District Collector, North Tripura, Kailashahar has observed in his final order as under: Hence, in exercise of the powers conferred upon me u/s. 95 of the TLR & LR Act, it is hereby ordered that the order passed in Mutation Case No. 335/96(Kumarghat Tehsil) be quashed and the suit land be recorded in the names of the petitioners immediately subject to condition that the R.O.R. will be changed according to findings of Ld. Civil Court as and when final order is passed by Ld. Civil Court. 5. The said order dated 11.03.2002 has been introduced by the defendants as Exbt. D in the evidence. The Civil Judge, Sr. Civil Court as and when final order is passed by Ld. Civil Court. 5. The said order dated 11.03.2002 has been introduced by the defendants as Exbt. D in the evidence. The Civil Judge, Sr. Division, North Tripura, Kailashahar tried the suit and held that there is no proof that the suit land described in the schedule-A was the joint property or the predecessor of the plaintiffs had any title over the said land. According to him, the title has devolved to the predecessor of the plaintiffs only after the sale deed, Exbt. 3 was executed by the predecessor of the defendants. But he has erroneously observed that the land purchased by the predecessor of the plaintiffs has been acquired and accordingly, he denied to give any relief to the plaintiffs. But from the deposition of PW-1, it appears that the predecessor of the plaintiffs purchased other plots of land admeasuring 0.30 acres which was acquired by the railway and the plaintiffs got full compensation for the acquired land. It is obvious from his statement if read with the final order of the District Collector, Exbt. D, it would surface that the land so acquired by the railway is not the land purchased by the predecessor of the plaintiffs by dint of Exbt. 3. The first appellate court by the impugned judgment, as it appears, has corrected the error and declared the title of the plaintiffs over the land covered by Exbt. 3 and confirmed their possession over the entire schedule-A land. It is to be noted that the defendants have not made any counter claim against the plaintiffs. 6. It has been found concurrently that the plaintiffs have failed to adduce any evidence to substantiate that the schedule-A land was a joint property, though that property stood in the name of the predecessor of the defendants. There is no proof to show that Kamini and Sashimohan were in the Hindu Undivided Family (HUF) or that the said land was allotted for the HUF. It has been rather shown from the record of rights that the schedule-A land was allotted by the Government in favour of Kaminimohan Debnath. During the lifetime of Kamini, Sashimohan did not take any step to mutate his name even on the basis of Exbt. 3 document. In this regard, there are some conflicting findings in the judgments of the courts below. During the lifetime of Kamini, Sashimohan did not take any step to mutate his name even on the basis of Exbt. 3 document. In this regard, there are some conflicting findings in the judgments of the courts below. The plaintiffs have adduced some witnesses to establish the joint ownership of the land in question, but the testimonies of those witnesses have culminated in establishing a fact that both the brothers were living on the said land. 7. The plaintiffs filed the suit when the defendants had questioned the entry in the Khatian as regards their title by filing an petition under Section 95 of the TLR & LR Act, 1960 in the court of the District Collector, North Tripura, Kailashahar and claimed to record them as the rayats over a piece of land admeasuring 0.29 acres out of the said land of 0.58 acres which is the remainder of the land after the Exbt. 3 was executed. In other words, their claim was restricted to the remainder of the land vis-à-vis the land demised in Exbt. 3. At the first instance, though the question of limitation was raised by the defendants but they did not carried on that jurisprudential objection when the matter was heard. As such, that jurisprudential objection has to be considered as abandoned by the defendants. 8. Mr. D.K. Biswas, learned counsel appearing for the appellants has strenuously argued that the statement of Kamini appearing in the sale deed (Exbt. 3) has sufficiently proved the fact that the schedule-A land was a joint property and there had been partition by metes and bounds between Kamini and Sashimohan. Kamini got his land on the northern side of the schedule-A land which he had transferred by dint of Exbt. 3. Thus, Sashimohan, the predecessor of the plaintiffs became the owner of the entire schedule-A land. Mr. Biswas, learned counsel has further submitted that by oral evidence the said incidence has been well established by the plaintiffs. Thus, the courts below by holding contrary thereto have perversely read the evidence and as such, the impugned judgment requires interference. 9. Mr. S.M. Chakraborty, learned senior appearing for the respondents has refuted such submission of Mr. Biswas, learned counsel appearing for the appellants, the plaintiffs in the suit. Mr. Thus, the courts below by holding contrary thereto have perversely read the evidence and as such, the impugned judgment requires interference. 9. Mr. S.M. Chakraborty, learned senior appearing for the respondents has refuted such submission of Mr. Biswas, learned counsel appearing for the appellants, the plaintiffs in the suit. Mr. Chakraborty, learned counsel has referred a statement, which is a part of the deposition of PW-1, Nityananda Debnath, the plaintiff No. 1 where he has stated that ’I have no personal knowledge about the fact whether my father and my uncle Kamini Mohan Debnath were in joint mess or not’. PW-2, Khirode Ch. Debnath, however, has stated that Kamini and Sashimohan were in the joint family and Sashimohan was in the exclusive possession of the schedule-A land. PW-3, Jatindra Debnath, PW-4, Abanimohan Debnath have replicated PW-2. The defendants denied that Kamini and Sashimohan came together from East Pakistan and they were staying together. However, Sri Upendra Debnath, the defendant No. 1 has stated that out of affection his father allowed Sashimohan to stay on a part of a suit land to reside. It has been also evidenced from Khatian No. 132 of Mouza-Pabiacherra that during the revisional survey operation, an area of 0.29 acres had been recorded in the name of Kamini Mohan Debnath. Mr. Chakraborty, learned senior counsel has further submitted that the plaintiffs could neither place any document to show that the allotment was made in favour of the HUF nor adduced any clinching evidence of partition by metes and bounds. There is no deed of partition. The deed of partition is an instrument mandatorily registrable as per Section 17 of the Registration Act. The plaintiffs have utterly failed to address that aspect of the matter. 10. Having appreciated the respective submissions of the learned counsel appearing for the parties and on scrutiny of the records for this part, this Court has no hesitation to hold that the cumulative effect of inadequacy of evidence has negated the claim of the joint ownership of the schedule-A land, even though the plaintiffs or their predecessor were in the possession of the schedule-A land. 11. The other question is that whether the statement of Kamini Mohan Debnath, predecessor of the defendants in the sale deed (Exbt. 11. The other question is that whether the statement of Kamini Mohan Debnath, predecessor of the defendants in the sale deed (Exbt. 3) is admission of the schedule-A land’s being the joint property and its partition by metes and bounds or whether the basis of that admission the title over the schedule-A land is liable to be declared in favour of the plaintiffs. The pertinent question remains whether that content of Exbt. 3 has been proved or not. Merely on proving the sale deed executed by the person competent to transfer the land, it cannot be contended that the statements inserted in the said deed has been proved. The sale deed is for purpose of transfer of the land as demised therein. Having brought the said deed in the evidence, the incidence of sale has been proved but not the other content inasmuch as the purpose of execution of that deed was not to cause partition or to marks declaration of title. That content cannot be said to have been proved merely because the sale deed has been admitted in the evidence as Exbt. 3. In this regard, it has to be clearly held that unless the incidence of joint ownership of the schedule-A land and its partition thereof is proved by cogent evidence, such statement appeared in the recital cannot be held to have proved the fact of the joint property and the partition thereof. 12. In Byramjee Jeejeebhoy Private Limited vs. Govindbhai Appaji Bhatte and others, reported in 1994 (1) Bom CR 211, Bombay High Court has held that: .......even if the signature of the vendor on the document is proved unless the contents were proved, the documents cannot be admitted. We are afraid we cannot share the view of the learned trial Judge. The documents stands proved as soon as the fact of execution is proved and it is wholly irrelevant whether the contents are proved. The proof of contents of the document may be necessary in a given case, but the proof of document and the evidentiary value are two distinct and different factors. 13. This is a case where the content is required to be proved so far is related to the joint ownership of the schedule-A land and its partition by metes and bounds is corrected. Indisputably, no documentary evidence in this regard has been admitted by the plaintiffs in the evidence. 13. This is a case where the content is required to be proved so far is related to the joint ownership of the schedule-A land and its partition by metes and bounds is corrected. Indisputably, no documentary evidence in this regard has been admitted by the plaintiffs in the evidence. Inadequacy of the documentary evidence in this regard is bound to take its toll on the claim of the plaintiffs. Even the oral evidence as regards the partition by metes and bounds is entirely conspicuous by absence. No official from the Revenue Department has been examined to show the nature of the allotment, whether it was made in favour of the HUF or individually to the predecessor of the defendants. The burden was heavy on the shoulder of the plaintiffs and the plaintiffs have failed to discharge that burden. 14. Having held so, this Court does not find any infirmity in the impugned judgment and decree. Hence, no interference is called for. In the result, the appeal fails and accordingly, the same is dismissed. Prepare the decree accordingly and thereafter, send the LCRs without delay.