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2014 DIGILAW 284 (CAL)

Salimuddin Ahmed v. Golehar Bibi

2014-03-27

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. This appeal is at the instance of the plaintiffs/appellants and is directed against the judgement and decree dated November 27, 2009 of affirmation passed by the learned Additional District Judge, 7th Fast Track Court, Alipore in Title Appeal No.20 of 2005 affirming the judgment and decree dated December 23, 2004 passed by the learned Civil Judge (Junior Division), 6th Court, Alipore in Title Suit No.261 of 1994. Both the Courts below have dismissed the suit and the appeal preferred by the plaintiffs. The plaintiffs/appellants instituted the aforesaid suit for a decree of declaration of title, permanent injunction and other reliefs. The defendants are contesting the said suit by filing a written statement denying the material allegations raised in the plaint. Upon analysis of the evidence adduced by the parties, the learned Trial Judge dismissed the suit holding that the concerned Madrasa to which the gift had been made has no existence at all and so, as per condition of the gift, the property reverted back to the owners, who had transferred the same to the plaintiffs by way of sale deed but, the plaintiffs have no possession but no amendment has been sought for, for recovery of possession and as such, the suit is not maintainable in view of the provisions of Section 34 of the Specific Relief Act. The Appellate Court also dismissed the appeal preferred by the plaintiffs holding, inter alia, that the gift was duly executed according to the provisions of the Mohammedan law in favour of the junior high Madrasa but, upon certain terms and conditions that it should be converted into a high Madrasa, but, the same had not been done. Moreover, the provisions of the Paragraph no.164 of the Mohammedan law makes the condition of the gift as void and so, the condition should not be taken into consideration. But, only the male heirs of the original owner made the gift in favour of the Madrasa exploiting the female heirs. The male heirs had shares over 20 decimals of land, but, the female heirs had 9 decimals of land, but, they were not the donors at all. The learned Appellate Court has also held that the suit is bad for defect of parties and though such contention was raised by the defendants, no amendment was sought for. The male heirs had shares over 20 decimals of land, but, the female heirs had 9 decimals of land, but, they were not the donors at all. The learned Appellate Court has also held that the suit is bad for defect of parties and though such contention was raised by the defendants, no amendment was sought for. Now the proposed amendment is barred by limitation and as such the appeal has been dismissed. At the time of admission of the appeal the following substantial questions of law were framed:- i) “Whether the learned courts below committed substantial error of law in dismissing the suit altogether by overlooking the fact that even on the basis of defence taken by the defendants as appearing from the deed of gift executed in their favour they could not acquire title to the extent of entire suit property. ii) Whether the learned courts below committed substantial error of law in refusing the prayer for amendment of plaint made during the pendency of the appeal alleging dispossession during pendency of the suit as barred by limitation. iii) Whether the learned courts below committed substantial error of law in holding that there was ouster of the co-sharer by the act of the brothers by totally overlooking the fact that such fact was not alleged in the deed of gift executed in the year 1975. iv) Whether the learned courts below committed substantial error of law in not considering the question of extinguishment of title of the plaintiffs by adverse possession in proper perspective. v) Whether the learned courts below committed substantial error of law in appreciating the validity of the alleged deed of gift executed by the sons of Year Ali Mollick by overlooking the conditions, non-fulfillment of which amounted to revocation of same.” Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that though the donors had no right to make a gift of 29 decimals of land, but, 20 decimals of land only, they gifted the entire land measuring 29 decimals of land in favour of the Chaltaberia junior Madrasa on condition, that the said Madrasa would be converted into a high Madrasa. The plantiffs filed a copy of resolution dated October 10, 1993 (Exhibit no.4) which discloses that the Madrasa has not been converted into a high Madrasa and as such, the plaintiffs have contended that the suit property had been reverted back to the donors and thereafter, the donors as well as the female owners had transferred the entire property in favour of the plaintiffs. So far as the gift is concerned with a clause of reversion, according to the provisions of Paragraph no.164 of the Mohammedan law, such condition becomes void and as such, the question of reversion, in my view, has been rightly answered by the learned 1st Appellate Court in the negative form. The gift was made to the Madrasa who had started functioning in 1973 and the gift was executed in 1976 in favour of the Chaltaberia high Madrasa by male heirs in respect of the entire land measuring 29 decimals of land and the said school authority is in possession of the same all along. The learned Trial Judge, in my view, has rightly dismissed the said suit on contests without costs. The learned Appellate Court, while dealing with an application for amendment filed by the petitioner for impleading the secretary and the headmaster of the Chaltaberia Madrasa as party defendant, has rejected the application on the ground that the prayer for recovery of possession against the defendants has been sought for at the belated stage as the suit was filed in the year 1994 and the written statement was filed in the year 1995 stating about the possession of the suit property by Chaltaberia junior high Madrasa. But, no amendment was sought for earlier. Accordingly, the learned Appellate Court has held that the application for amendment for impleading those persons as party cannot be allowed and so, the application is barred by limitation. The L.R. record had been prepared in the name of Chaltaberia high Madrasa and as per evidence of the P.W.1, the said Madrasa is still in running condition and as such the learned 1st Appellate Court rejected the prayer for amendment of the plaint for impleament the secretary and headmaster of the Chaltaberia high school. In my view, both the Courts below have assigned appropriate reasons in support of the dismissal of the suit as well as the appeal. Mr. In my view, both the Courts below have assigned appropriate reasons in support of the dismissal of the suit as well as the appeal. Mr. Ranjit Chatterjee, learned Advocate appearing for the respondent no.1 series and 2 has referred to the decision of N. Varada Pillai & Anr. v. Jeevarathnammal reported in XXIV CWN 346 at Page No.350 and thus, he has contended that wrong possession even under an invalid gift deed become adverse to donors. As the plaintiffs have not prayed for recovery of possession though the Madrasa is in possession of the same, in my view, according to the decision of Ram Saran & Anr. v. Smt. Ganga Devi reported in AIR 1972 Supreme Court 2685 particularly the Paragraph no.4 simply for declaration of title and permanent injunction would not be enough for maintainability of the suit. The suit is totally barred by the provision of Section 34 of the Specific Relief Act and so, the suit is not maintainable in the present form. The learned Appellate Court, in my view, has rightly rejected the prayer for amendment at the belated appellate stage and such circumstances, the concurrent findings arriving at by the Courts below, in my view, should not be disturbed at all. In that view of the matter, I am of the opinion that the Courts below cannot be stated to have committed substantial error of law in consideration of the fact that the deed of gift executed by the male owners for gift of the entire property has not been challenged by the female owners and that the prayer for amendment contending that the same was made during the pendency of the appeal cannot be accepted as it is all along the contention of the defendants that the concerned madrasa is in possession of the same. The plea of adverse possession as contended by the defendants under the circumstances cannot be thrown away and there is no question of revocation of the deed of gift by the heirs of Yunus Ali under the changed circumstances. Accordingly, in my view there is no substantial error of law in arriving at the conclusion by the Courts below. So, the second appeal is devoid of merits and, in my view, there is no scope of interference. Accordingly, the second appeal is dismissed. The interim order as granted earlier stands vacated with the disposal of this second appeal. Accordingly, in my view there is no substantial error of law in arriving at the conclusion by the Courts below. So, the second appeal is devoid of merits and, in my view, there is no scope of interference. Accordingly, the second appeal is dismissed. The interim order as granted earlier stands vacated with the disposal of this second appeal. Considering the circumstances, there will be no order to as costs.