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2014 DIGILAW 406 (TRI)

Manik Lal Majumder v. Nani Gopal Mallik

2014-12-01

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 27.07.2005 and 30.05.2005 respectively passed by the learned Additional District Judge, Belonia, South Tripura in Title Appeal No. 07 of 2005, whereunder the learned Additional District Judge set aside the judgment and decree of dismissal dated 19.04.2005 passed by the learned Civil Judge (Junior Division), Belonia, South Tripura in Title Suit No. 21 of 1987. 2. Heard learned counsel, Mr. J. Majumder for the appellants. The respondents have chosen to remain absent. 3. The second appeal has been admitted for hearing on the following substantial question of law:- "1. Whether the plaintiff can file a suit under the provisions of Specific Relief Act when the matter is covered by the provisions of Indian Succession Act?" 4. The respondents as plaintiffs (hereinafter mentioned as 'plaintiff') instituted Title Suit No. 21 of 1987 against the defendant-appellants (hereinafter mentioned as 'defendants'), inter alia, praying for passing a decree declaring their right, title and interest in the suit land and also praying for a decree granting perpetual injunction restraining the defendants from entering into the suit land, and/or interfering in the possession of the plaintiffs in the suit land, described in the schedule of the plaint. 5. Undisputed facts are that Late Bharat Chandra Mallik, predecessor of the plaintiffs, was owner of 1.39 acres of land of Mouja-Belonia Town under Belonia Tehashil Kachari and the suit land is a part of that land belonged to Late Bharat Chandra Mallik, who died in the year 1967 leaving behind Sukhendu Bikash Mallik, the predecessor of defendant Nos. 3 to 8, Nani Gopal Mallik, plaintiff No. 1, Nepal Mallik, plaintiff No. 2, Badal Mallik, who died in the year 1977 and Bimal Mallik, untraceable/missing since 1982. After the death of Bharat Chandra Mallik, the suit land was amicably partitioned between the above named five sons of Bharat Chandra Mallik by a registered deed of partition in the year 1971. The suit land described in schedule of the plaint is the share of the property belonged to Bimal Mallik, who is not traceable/missing since 1982. 6. After the death of Bharat Chandra Mallik, the suit land was amicably partitioned between the above named five sons of Bharat Chandra Mallik by a registered deed of partition in the year 1971. The suit land described in schedule of the plaint is the share of the property belonged to Bimal Mallik, who is not traceable/missing since 1982. 6. The disputed facts are that the plaintiffs alleged that in the year 1977 Sukhendu Bikash Mallik sold out the share of his inherited land to defendant No. 1 and the defendants started residing on that plot of land. After sometime Bimal Mallik developed love affairs with defendant No. 3, which other members of the family of the plaintiffs could not tolerate and as a result Bimal Mallik got annoyed with the family members. At that time defendant No. 1 giving allurement of a job to Bimal Mallik took him to Udaipur, where defendant No. 1 was serving in the Office of the District Magistrate & Collector and in the year 1980 Bimal Mallik went to Udaipur and thereafter since 1982 he was not keeping any contact with his family, i.e., plaintiffs. In the year 1986 after the death of Sukhendu Bikash Mallik, the plaintiff No. 1 went to Udaipur to inform Bimal Mallik about the death of his elder brother and to bring him back to the house, but Bimal Mallik was not traceable. Defendant No. 1, who allured Bimal Mallik to go to Udaipur, could not give any satisfactory information as to the whereabouts of Bimal Mallik and, therefore, plaintiff No. 1 lodged a missing information at R.K. Pur police station. On 03.02.1987 the defendants made an attempt to encroach upon the suit land, which is the share of Bimal Mallik, missing so long, but due to resistance of the plaintiffs the defendants could not enter into the suit land. A criminal proceeding under Section 144 of Cr.P.C. was initiated and inquiry was made. Plaintiff thereafter filed the suit seeking the relief as stated hereinbefore. 7. A criminal proceeding under Section 144 of Cr.P.C. was initiated and inquiry was made. Plaintiff thereafter filed the suit seeking the relief as stated hereinbefore. 7. The defendants contested the suit by filing written statement, inter alia, contending that in the year 1976-77 Bimal Mallik found himself totally unsafe to reside in his house at Sarasima along with the plaintiffs and so on 22.05.1971 due to harsh treatment of plaintiff No. 1, Bimal Mallik entrusted Upendra Kuamr Majumder, the predecessor of the defendants, to look after and manage all properties of Bimal Mallik including the suit land and said Bimal Mallik permanently shifted to Udaipur in the year 1976-77 and since then Upendra Kumar Majumder had been possessing the suit land and other property of Bimal Mallik. After the death of Upendra Kumar Mallik, defendants have been possessing the suit land exercising all rights. It is also stated that on 04.01.1977 Bimal Mallik executed a Will in favour of Upendra Kumar Majumder bequeathing the suit land and as per that Will Upendra Kumar Majumder became the owner of the suit land and after the death of Upendra Kumar Majumder, defendants being the legal heirs of Upendra Kumar Majumder, got the ownership of the land. The plaintiffs have got no right, title and interest in the suit land and so, the defendants prayed for dismissal of the suit. 8. The trial Court framed three issues, namely:- "(1) Whether the plaintiff has got right, title and interest over the suit land? (2) Whether the plaintiff is entitled to get a decree of perpetual injunction against the defendant as prayed for? (3) Any other relief as the parties are entitled to?" 9. In course of trial the plaintiff examined himself in support of their case and proved the following documents:- "(1) Exbt.-1 - Partition Deed dated 22.05.1971 bearing No. 3586 containing 13 pages; (2) Exbt.-2 - The report of Executive Magistrate, Belonia in connection with Misc. Case No. 5 of 1985 containing 3 pages; (3) Exbt.-3 - Notice is issued by S.D.M., Belonia in connection with Misc. Case No. 5 of 1987. 10. The defendant No. 1 examined himself as DW 1 and also examined another witness, namely DW 2, Sri Prabhat Datta, an Advocate of Belonia Bar. 11. The trial Court decided the issues against the plaintiff and dismissed the suit. 12. Case No. 5 of 1987. 10. The defendant No. 1 examined himself as DW 1 and also examined another witness, namely DW 2, Sri Prabhat Datta, an Advocate of Belonia Bar. 11. The trial Court decided the issues against the plaintiff and dismissed the suit. 12. The plaintiffs preferred Title Appeal No. 07 of 2005 in the Court of Additional District Judge, Belonia and the learned Additional District Judge by impugned Judgment dated 27.07.2005 allowed the appeal and set aside the judgment and decree of dismissal passed by the trial Court and decreed the suit. 13. Hence, this second appeal. 14. Learned counsel, Mr. Majumder appearing for the defendant-appellants submitted that the defendants are in possession of the suit land and it is abundantly proved on the basis of the report of the Executive Magistrate in connection with Misc. Case No. 05 of 1985. It shows that Bimal Mallik handed over possession of the suit land to Upendra Kumar Majumder, the predecessor of the defendants and that Bimal Mallik on 04.01.1977 executed a Will bequeathing the said property to Upendra Kumar Majumder. Bimal Mallik is missing from 1982 and nobody can say whereabouts of him. Since he is missing for more than 7 years and nobody can say his whereabouts, for all practical purposes it is presumed that he is dead in the eye of law. So, the Will is enforceable. The scribe of the Will, the attesting witness and the legatee Upendra Kumar Majumder all died in the mean time. So, DW 2, Sri Prabhat Chandra Datta has been examined by the defendants, who has proved the signature of scribe in the Will and that is enough to prove the Will for the purpose of claim of the defendants. The trial Court rightly decided the issues and dismissed the suit. The appellate Court committed wrong in decreeing the suit. 15. Only one substantial question of law has been formulated. No other substantial question of law has been insisted during hearing. 16. The plaintiffs instituted the suit seeking declaration of right, title and interest and permanent injunction against the defendants. The plaintiffs did not institute the suit under any provision of the Indian Succession Act. The issue of Will has been raised by the defendants in their pleadings. So, there is no legal impediment for the plaintiffs in instituting the suit under the Specific Relief Act seeking appropriate relief. The plaintiffs did not institute the suit under any provision of the Indian Succession Act. The issue of Will has been raised by the defendants in their pleadings. So, there is no legal impediment for the plaintiffs in instituting the suit under the Specific Relief Act seeking appropriate relief. I find no merit to further discuss on the substantial question of law formulated in the second appeal. However, since learned counsel Mr. Majumder has raised the point of Will, which is the basis of the claim of the defendants, I have perused the pleadings and evidence on record and the impugned judgment passed by the learned Additional District Judge. 17. The suit land belonged to the share of Bimal Mallik, which he got by way of amicable partition with his other brothers. Both the plaintiffs and defendants claimed possession over the suit land and on that issue there were some criminal proceedings also in the Court of the Executive Magistrate. The plaintiffs claimed that since Bimal Mallik is missing from 1982 and not traceable to their knowledge for more than seven years, they being the natural successors are entitled to the suit land. The defendants claimed that Bimal Mallik on 04.01.1977 executed a Will bequeathing the suit land to Upendra Kumar Majumder. 18. Burden heavily lies on the defendants to prove that Bimal Mallik executed the said Will. Admittedly, the Will has not been exhibited. DW 2 only proved the signature of the scribe of the Will, namely, Late Binoy Bhusan Biswas, an Advocate of Udaipur Bar. The appellate Court in the judgment clearly indicated the contents of the Will. Neither the signature of the testator, Bimal Mallik nor the attestation by any of the attesting witnesses is proved by the defendants. 19. Section 69 of the Evidence Act reads as follows:- "69. Proof where no attesting witness found. - If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person." 20. In view of the above provision, the defendants were bound to prove the attestation as required by law, but the defendants have failed to prove the attestation. In view of the above provision, the defendants were bound to prove the attestation as required by law, but the defendants have failed to prove the attestation. The plaintiffs alleged that Bimal Mallik never executed any such Will and that it was a forged Will executed through one Narayan Mallik and it was sent to the handwriting expert to examine the handwriting of Narayan Mallik and also his signature in the Will. But no attempt was taken to prove the signature of Bimal Mallik in the Will. There is no evidence on behalf of the defendants that it was last Will of the deceased Bimal Mallik in respect of the suit property. 21. Section 63 of the Indian Succession Act prescribes the provision regarding execution of unprivileged Wills. In the absence of any evidence of the attesting witnesses or at least the evidence of any witness that the attesting witness actually signed the Will and the testator executed the Will in presence of the attesting witness, the alleged Will under which the defendants set up their claim is nothing but a paper having no credential at all. The defendants failed to prove their claim that Bimal Mallik executed a Will and thereby bequeathed the property in the name of their predecessor, Upendra Kumar Majumder. 22. The appellate Court has made an observation that as per the pleadings and evidence, Upendra Kumar Majumder died before seven years of missing of Bimal Mallik. Even after the death of Upendra Kumar Mallik no claim was set up that a Will was executed by Bimal Mallik, who was since long missing. The plaintiffs are natural successors of Bimal Mallik. Their such natural rights of inheritance to the suit property will be affected only in the event it is proved that Bimal Mallik by any other means transferred the right of the property to somebody else. Since the deceased have failed to prove the Will as required by law, the appellate Court rightly held that the plaintiffs proved their case and accordingly, decreed the suit. 23. In view of the discussion made above, I find no merit in the second appeal and the second appeal, therefore, stands dismissed with cost. 24. Send back the lower court record along with a copy of this judgment.