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2014 DIGILAW 229 (CAL)

Narendra Nath Karmakar v. Bata Krishna Karmakar

2014-03-18

DEBANGSU BASAK

body2014
JUDGMENT : Debangsu Basak, J. Concurrent findings of two Courts below were challenged in the present second appeal. By the Order dated April 18, 2000 the appeal was directed to be heard on the substantial question of law as formulated in the added grounds. The two added grounds were whether the Courts below erred in deciding the title of the parties relating to the transaction in question in a summary way in a suit for recovery of licence when the positive defence was a claim of a co-sharer along with other brothers and whether in view of the pendency of a revisional application for addition of another brother the Courts below erred in deciding the question of title of all the brothers. 2. The suit was for eviction of the defendant as licensee from the suit property. The Trial Court decreed the suit in favour of the plaintiff. The decree was passed on contested hearing. Evidence was adduced by the parties to the suit. The defendant preferred an appeal. The appeal was dismissed on contested hearing. 3. In the second appeal it was contended on behalf of the appellant that, the appellant was a co-sharer of the suit property. It was also contended that, the other brothers were necessary and proper parties to the suit and were not made parties to the suit and as such the suit suffered from non-joinder of necessary parties. On behalf of the appellant the provisions of Order 1 Rule 10 of the Court of Civil Procedure 1908 was relied upon. In that regard reliance was also placed on All India Reporter 1958 Supreme Court page 886, Razia Begum v. Sahebzadi Anwar Begum & Ors.. 4. The parties to the suit adduced evidence at trial. Various documents were marked as exhibits. The parties were allowed to give oral evidence. On consideration of the evidence on record and the contentions on behalf of the parties the Trial Court was of the view that, the plaintiff was entitled to the decree as prayed for. The Trial Court gave detailed reasons as to why the plaintiff was entitled to the decree as prayed for. On appeal the parties were heard. The Appeal Court dealt with the judgment under appeal elaborately and gave his reasons for coming to the conclusion that, the appeal was required to be dismissed. The appeal was dismissed. The Trial Court gave detailed reasons as to why the plaintiff was entitled to the decree as prayed for. On appeal the parties were heard. The Appeal Court dealt with the judgment under appeal elaborately and gave his reasons for coming to the conclusion that, the appeal was required to be dismissed. The appeal was dismissed. Both the judgments of the Trial Court as also that of the Appeal Court were with reasons. Nothing was demonstrated during the course of hearing in the second appeal that, the reasons given by the two Courts below were perverse. Therefore, it would not be said that, the issues raised at trial was decided in a summary way. There was no substantial question of law sought to be raised on behalf of the appellant. 5. The defendant had two opportunities to establish his title. He failed to do so. The plaintiff established that, the plaintiff purchased the suit property along with his uncle by a registered deed dated January 26, 1944. After purchase by virtue of an amicable partition the plaintiff came into possession of the demarcated portion. 6. The defendant claimed that, the father of the plaintiff purchased the suit property in the name of the plaintiff. The plaintiff and the defendant are brothers. During the lifetime of their father the defendant constructed 9 paccua walled and tin thatched rooms on the Western part of the suit property. 7. On consideration of the stand taken by the rival parties the Appeal Court found that two issues were raised. First of such issue was whether the plaintiff himself along with his uncle purchased the suit property or whether the suit property was purchased by the father of the plaintiff and the defendant along with the uncle. The second issue was whether the plaintiff constructed the 9 rooms on the Southern part of the suit property or whether the defendant constructed 9 rooms on the Western part of the suit property. 8. The rival contentions were considered on the evidence adduced by the parties. In support of this case the plaintiff filed Revenue Survey and Central Survey Record of Rights which were marked as exhibits. 8. The rival contentions were considered on the evidence adduced by the parties. In support of this case the plaintiff filed Revenue Survey and Central Survey Record of Rights which were marked as exhibits. The plaintiff also submitted Government rent receipt which was marked as Exhibit 3, certified copy of judgment in Title Suit No. 431 of 1987, which was marked as Exhibit 4, certified copy of decree of Title Suit No. 431 of 1987 which was marked as Exhibit 5, final report of the Commissioner marked as Exhibit 7 and certified copy of the final decree which was marked as Exhibit 8, deed of return marked as Exhibit 9, electric bills and counterpart of the bills which were also marked as exhibits. The name of the plaintiff appeared in the record of rights. This recording in the record of rights was of presumptive value unless rebutted by evidence. The defendant tried to establish that, the property in question was purchased by his father in the name of the plaintiff. The title deed admittedly stood in the name of the plaintiff and his uncle. It was contended that, the suit property was purchased by his father in the benami of the plaintiff. The Appeal Court negated such contention in view of the provisions of the Benami Transactions (Prohibition) Act, 1988. The defendant was not allowed to raise a defence based on a right in respect of a property held benami in view of the provisions of the said act. Therefore, the plea of benami was not available to the defendant. 9. The plea of the defendant that he constructed 9 rooms at his own cost was also considered in details. It was found that, the pleading of the defendant and his evidence did not corroborate each other. Rather they contradicted each other on various material points. The contradictions were discussed elaborately by the Appeal Court. 10. The question that the suit suffered from non-joinder of parties cannot also be accepted. No other party was relevant to the suit. The plea that the property was purchased by the father in the name of the plaintiff and, therefore, the brothers were entitled to a share therein was not available to the defendant as well as to any other brother of the plaintiff in view of the provisions of the Benami Transactions (Prohibition) Act, 1988. The plea that the property was purchased by the father in the name of the plaintiff and, therefore, the brothers were entitled to a share therein was not available to the defendant as well as to any other brother of the plaintiff in view of the provisions of the Benami Transactions (Prohibition) Act, 1988. The plaintiff was seeking eviction of the defendant from the suit property. Therefore, it cannot be said that the suit property suffered from non-joinder of parties. At the hearing the fate of the revisional application was not alluded to. 11. In Razia Begum (Supra) the Supreme Court was considering an application under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908. The facts of the instant case are absolute different. The defendant was not permitted in law, namely, Benami Transactions (Prohibition) Act, 1988 to claim that the property was purchased by the father of the defendant in the name of the plaintiff. Therefore, other brothers of the defendant and the plaintiff were not entitled to be added as parties to the suit. The suit was also one of revocation of a licensee. The plaintiff was not seeking any relief against the other brothers. Therefore, the other brothers were not necessary and proper parties to the suit. 12. Both the questions raised were required to be answered as against the appellant in view of the discussion above. 13. In the premises, I find no merit in the second appeal. 14. S.A. No. 351 of 2000 is dismissed without any order as to costs.