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2014 DIGILAW 683 (CAL)

Girija Bala Bhakat v. Ganesh Lal Bhakat

2014-07-25

ASIM KUMAR MONDAL

body2014
JUDGMENT Asim Kumar Mondal, J. This appeal is directed against the decree and judgment passed by learned Additional District Judge, First Court, Midnapore in Title Appeal No. 158 of 1975. Learned First Appellate Court by the decree and judgment impugned passed in Title Appeal No. 158 of 1975 dismissed the appeal on contest with the cost against the respondent No. 1 and ex-parte without cost against the rest. Learned First Appellate Court has been pleased to affirm the judgment and decree passed by the learned Munsif, First Court, Midnapore in Title Suit No. 91 of 1956 wherein learned Munsif has been pleased to decreed the suit on contest with cost against the defendant No. 1 and dismissed the suit without cost against the defendant No. 2 (Ka to tha) and dismissed ex-parte against the rest. Learned Munsif in the said judgment and decree confirmed the right, title and interest of the plaintiff Ganesh Lal Bhakat in the said land along with permanent structure thereon confirming the possession of the plaintiff therein. It is further directed by the learned Munsif in the said judgment that defendant No. 1 was directed to remove the chala, when 30 days of the date of the decree made by him in the suit land by his own cost failing which the plaintiff is entitled to remove the same. The defendant No. 1 was also permanently restrained by an order of injunction by causing any disturbance in the peaceful possession of the plaintiff in the suit property. The Pleader Commissioner’s report, field book and the case map do form part of the decree. The case of the plaintiff Ganesh Lal Bhakat as it appears in the judgment and decree impugned passed by learned First Appellate Court with plot No. 340 which is the suit plot and the Western portion of the non-suit plot 342 formed one compact bastu holding in the suit land and the other lands of the suit mouza at Colonelgola and other mouzas belonged to Mewalal and his brothers. Mewalal died leaving his son Shibjatan. In the year 1906 there was a partition between Shibjatan and his co-sharers by a registered deed. The suit plot along with other lands fell to the share of Shibjatan. The another co-sharer Mewalal got the land purchased from Ujjalmani in the year 1895 along with other lands in his share. Mewalal died leaving his son Shibjatan. In the year 1906 there was a partition between Shibjatan and his co-sharers by a registered deed. The suit plot along with other lands fell to the share of Shibjatan. The another co-sharer Mewalal got the land purchased from Ujjalmani in the year 1895 along with other lands in his share. Shibjatan died leaving behind the plaintiff as his son and the lands allotted to Shibjatan, therefore, devolved upon the plaintiff and plaintiff has been in possession of the same including the land purchased from Ujjalmani. The defendant No. 1 purchased in an auction in a certificate execution proceeding against Debnarayan and Shibnarayan the land which was purchased from Ujjalmani. According to the case of the plaintiff the same has been recorded in plot No. 339. It is the further case of the plaintiff that the suit plot No. 340 has been wrongly recorded in the name of the defendant No. 1 along with possession of the plaintiff has been noted against the said plot. It is the further case of the plaintiff that the defendant no. 1 constructed a chala ghar in a portion of the suit plot by trespassing into it. Hence the plaintiff filed the suit for the relief as prayed therein. The defendant no. 1 contested the suit by filing written statement and he denied the right, title and interest as well as possession of the plaintiff in the suit land. According to the case of the defendant the suit plot No. 340 fall to the share of Mewalal who transferred the same to Debnarayan and Shibnarayan and ultimately it was purchased by defendant No. 1 at a certificate sale proceeding case. Defendant No. 1 was also alleged that after auction purchase he took possession in the land in 1935 and had been in possession thereof since then. Defendant No. 1 also claimed that he has acquired right, title and interest in the suit plot by adverse possession. The defendant No. 1 Ganesh Prasad Bkakat has preferred the present appeal before this Court on the ground. Defendant No. 1 also claimed that he has acquired right, title and interest in the suit plot by adverse possession. The defendant No. 1 Ganesh Prasad Bkakat has preferred the present appeal before this Court on the ground. That both the Courts below have erred in law in decreeing the suit in favour of the plaintiff, who has no locus standi to proceed in the case after the death of Gopal Hari Bose who was originally plaintiff No. 1, whose heirs were substituted as defendants and did not claim any interest in the suit property. Furthermore, the appellant/defendant raised the question that the suit property was sold to Gopal Hari Bose with an agreement of the conveyance which was not done by Gopal Hari Bose or by his legal heirs in favour of the plaintiff/respondent No. 1. Both the learned Courts below ought to have believe the case of the peaceful possession of the plaintiff. Upon the case of the parties and the points as raised by the appellant in their Memorandum of Appeal, the following substantial questions of law has been framed for consideration the points raised by the learned Counsels in the appeal and to come to conclusion. 1. Whether the learned Courts below acted substantial error in law in decreeing the suit in favour of the plaintiff who has no right and locus standi to proceed in the case after the death of Gopal Hari Bose, plaintiff No. 1 whose legal heirs though were substituted as defendant no. 1 preferred not to proceed in the suit? 2. Whether the learned court below have acted substantial error in law to hold that the sale certificate is no evidence of title and same is not binding upon the plaintiff as he was not a party in the certificate proceeding. 3. Whether learned courts below have acted substantial error in law in considering the record of rights prepared by the authority standing in the name of defendant No. 1 as dhakalkar and the entry in record remain unchallenged. 4. Whether learned Court below have acted substantial error in law in accepting/relying the report submitted by learned Pleader Commissioner who was not in accordance with the directions of the learned First Appellate Court at the time of second demand. Cases Referred:- 1. (2012) 2 supreme Court Cases 548 2. AIR 1926 Privy Council 100 3. 4. Whether learned Court below have acted substantial error in law in accepting/relying the report submitted by learned Pleader Commissioner who was not in accordance with the directions of the learned First Appellate Court at the time of second demand. Cases Referred:- 1. (2012) 2 supreme Court Cases 548 2. AIR 1926 Privy Council 100 3. Civil Appellate Jurisdiction – Appeal from Appellate Decree No. 2124 of 1924 4. Appeal from Appellate Decree No. 1925 – 1963 5. (1993) 4 Supreme Court Cases 349 6. AIR 1992 Delhi 118 7. AIR 1995 Kerala 157 8. AIR 1958 Calcutta 179 9. AIR 1979 Calcutta 50 10. (2007) 5 Supreme Court Cases 745 11. (2002) 4 Supreme Court Cases 481 12. AIR 1922 Privy Council 252 13. (1996) 3 Supreme Court Cases 630 Mr. P.B. Sahoo, learned counsel with Mr. Sudhakar Biswas, learned Advocate appear on behalf of the appellants. Mr. Sahoo, learned Counsel submits that in course of his argument that both the Courts below committed a wrong in law in decreeing the suit in favour of the plaintiff. The defendant had no locus standi to proceed with the case after the death of Gopal Hari Bose. Gopal Hari Bose was the plaintiff No. 1 and his legal heirs has been substituted as defendants and did not claim interest in the suit properties. Mr. Sahoo submits that in the sale deed executed by the plaintiff No. 2 Ganesh Lal Bhakat, there was condition that the same would be reconveyance by the Gopal Hari Bose since the sale deed was executed the right, title and interest of Ganesh Lal Bhakat was transferred in favour of Ganesh Lal Bhakat. There is nothing to show that Gopal hari Bose reconveyed the property of Ganesh Lal Bhakat. So, Ganesh Lal Bhakat had no right, title and interest in the suit plot at the time of filing the suit. Mr. Sahoo, raised the question of maintainability of the suit in the eye of law as the plaintiff had no right, title and interest in the suit property. He further submitted that the learned Trial Court as well as learned First Appellate Court should have dismissed the suit and allowed the appeal. None of the learned Court below ever considered as to whether the plaintiff No. 2 has any interest after sale of the suit property in the event of the death of plaintiff No. 1. Mr. He further submitted that the learned Trial Court as well as learned First Appellate Court should have dismissed the suit and allowed the appeal. None of the learned Court below ever considered as to whether the plaintiff No. 2 has any interest after sale of the suit property in the event of the death of plaintiff No. 1. Mr. Sahoo also raised the question as to the findings of learned Courts below that said plot No. 340 was allotted to the father of the plaintiff. The suit plot was purchased by the defendant No. 1 in an auction sale held in execution proceeding. It cannot be said that the certificate issued in proceeding by the appropriate authority has no value in the eye of law as the plaintiff was not made party in the said proceeding. Mr. Sahoo further submits that it is the settled / established principle of law that the sale certificate is an evidence of title and if anybodies interest has been affected by such sale, the remedy of the affected person is to resort to legal proceedings to set aside such sale otherwise such sale is valid in the eye of law. Mr. Sahoo further submitted that the sale certificate is a conclusive evidence of purchase, which forms the right, title and interest of the purchaser and the Civil court is bound to give effect to the certificate and cannot ignore the same unless and until the said certificate proceeding is set aside in accordance with law. Mr. Sahoo submits that learned Court below committed a substantial error in law by not considering the record of rights prepared under the Bengal Tenancy act just after the said certificate sale whereby the defendant No. 1 had acquired title in plot No. 340. The name of the defendant No. 1 has been recorded as dhakalkari in respect of the said suit plot. The said record of rights has not been challenged. Learned both the Courts below have committed gross error and failed to consider that in the plaint, suit land is described as plot No. 340 and that is shown in hands sketch map attached with the plaint. The deposition of P.W. 1 Gopal Hari Bose who categorically claimed that suit plot is 340 and there was no denial of such claim by plaintiff No. 2 Ganesh Lal Bhakat. The deposition of P.W. 1 Gopal Hari Bose who categorically claimed that suit plot is 340 and there was no denial of such claim by plaintiff No. 2 Ganesh Lal Bhakat. It is an admitted position as stated in the plaint that in sale deed description of land have not been made correctly. In spite of this the learned court below made out a third case holding that plaintiff No. 1 Gopal Hari Bose had not acquired plot No. 340 but acquired plot No. 12 and 346 by the said sale, which was not the case of either of the parties. Mr. Priyabrata Ghosh, learned Counsel appears on behalf of the respondent / plaintiffs. In course of his submission learned Counsel argued that both the Trial Court and First Appellate Court has come to the same finding in respect of the fact of the case of the parties. So, this Court being a Second Appellate Court should not interfere into the judgments of First Appellate Court in respect of finding of facts and observations thereof. This Court is only to see the legal aspects. Mr. Ghosh referred the provisions of Section 20, 35, 34 and 36 to the Bengal Public Demand Recovery Act. Mr. Ghosh after drawing my attention to the aforesaid provisions of Bengal Public Demand Recovery Act submits that Civil Court has jurisdiction to entertain a suit challenging the certificate sale. Mr. Ghosh further submits that the suit may be brought in a Civil Court for recovery of possession of such property or to such sale on the ground that such notice has not been served and that the plaintiff has sustained substantial injury by reason of irregularity. Mr. Ghosh disputed the validity and illegality of the sale certificate as claimed by the defendant / appellant over the plot No. 340. It is submitted that there is nothing to mention of Plot No. 340 in the sale deed or agreement of reconveyance. Admittedly a sale deed was executed by P.W. 2 in favour of P.W. 1. It is not the fact that in the said sale deed P.W. 2 sold out the plot No. 340, so, transfer of right, title and interest in plot No. 340 in favour of plaintiff No. 1 Gopal Hari Basu does not arise. Admittedly a sale deed was executed by P.W. 2 in favour of P.W. 1. It is not the fact that in the said sale deed P.W. 2 sold out the plot No. 340, so, transfer of right, title and interest in plot No. 340 in favour of plaintiff No. 1 Gopal Hari Basu does not arise. It is not the fact that the plaintiff No. 2 has got no right, title and interest over the plot No. 340 at the time of institution of the suit. In the First Appeal at the instance of both the parties the suit was remanded back for local inspection. Accordingly Pleader Commissioner was appointed. In the said remand the appellate Court observed that measurement as to boundary will prevail over the measurement taken on joint / measurement of the plot. Mr. Ghosh further submits that it is a settled principle of law that if a particular document or decree is void, the person affected by the said document or decree can very well ignore the same and a suit filed seeking substantive relief which may be available to him without seeking any declaration with the said decree or document is void or any substantive relief of cancellation of the same. In the instant case the plaintiff has filed a suit for substantive relief available to him without filing a specific declaratory suit to the effect that the decree or the document is void or for cancellation of the same. Mr. Ghosh submits that the defendant / appellant trespassed upon the plaintiffs property and caused mischief of construction of a chala. Plaintiff has entitled to recover possession of the land and can always seek for mandatory injunction. Plaintiff has prayed a decree of mandatory injunction to remove the said chala. Construction of chala in the suit plot is nothing but deliberate act of the defendant. So, plaintiff cannot be denied on the relief of the mandatory injunction. Mr. Ghosh further submits that concurrent findings of both the learned Courts below in respect of the same facts raised and disputed by the parties in the suit which is based on proper consideration of the evidence adduced by the parties and neither of the parties can challenge the veracity of the said testimonies of the witnesses in Second Appeal. Mr. Ghosh further submits that concurrent findings of both the learned Courts below in respect of the same facts raised and disputed by the parties in the suit which is based on proper consideration of the evidence adduced by the parties and neither of the parties can challenge the veracity of the said testimonies of the witnesses in Second Appeal. Both the learned Courts below have passed the judgment and decree at the trial stage as well as at the First Appeal stage on the basis of evidences adduced by the parties as well as documents relied upon by them. So, there is no scope to interfere into the said findings by the Second Appellate Court as the said findings are based upon the evidences relates to both facts and law. I have carefully perused the decree and judgment passed by learned Additional District Judge, First Court at Midnapore in Title Appeal No. 158 of 1975. I have also considered the submissions of learned counsels and the decisions of Hon’ble Apex Court referred above and relied upon by the learned Counsel of the parties. I find that learned First Appellate Court has considered all the points raised before him by the learned Counsels in respect of their respective submissions and have dealt with nicely answering all the questions raised in the hearing of appeal before him. In fact, the question raised by learned Counsel Mr. Sahoo in criticising the judgment of learned Lower Appellate Court was also raised by the learned Advocate appearing on behalf of the appellants before learned Lower Appellate Court. Learned First Appellate Court has observed and find that in the deed of partition of the year 1906 the suit plot was allotted to Shibjatan, father of the plaintiff and subsequently it devolved upon the plaintiff. Learned First Appellate Court has discussed elaborately the evidences as well as the documents on record to come to the said findings. Partition amongst the co-sharers in the year 1906 is not disputed that the plot No. 340 was allotted to the father of the plaintiff No. 2 which cannot be said a dispute / points relates to a question of law. Learned Lower Appellate Court have also discussed as to the logic of acceptance of the report of learned Pleader Commissioner, wherefrom, the identity as well as location of plot no. 340 could be ascertained. Learned Lower Appellate Court have also discussed as to the logic of acceptance of the report of learned Pleader Commissioner, wherefrom, the identity as well as location of plot no. 340 could be ascertained. Learned First Appellate Court has properly and logically have answered the question of legal position of a sale certificate allegedly related to the suit plot. It is true that defendant no. 1 purchased some lands in certificate auction proceedings initiated against Debnarayan and Shibnarayan. The said certificate (exhibit-E) shows the land purchased by the defendant No. 1 with the reference to petty settlement plot Nos. which included plots 2555 and 2556. The plot under schedule shows that the said two petty settlement plots are equivalent to plot no. 340. The plot No. 340 was allotted to the father of the plaintiff as per deed of partition of 1906. So, it is clear that Debnarayan and Shibnarayan had no interest in the plot. Therefore, learned First Appellate Court has come to the findings that the plaintiff being not a party to the certificate proceeding of the sale of plot No. 340 and that proceeding cannot effect the plaintiff’s right, title and interest therein. Plaintiff was neither a party in the said sale certificate proceeding nor the plot No. 340 was belonged to Debnarayan and Shibnarayan. Therefore, the sale certificate has got no force /effect upon the right, title and interest of the plaintiff in plot No. 340. In view of a decision of Delhi High Court reported in AIR 1992 at Page 118 the petitioner can very well ignore the said document and file a suit seeking substantive relief which may be available to him without seeking any declaration or relief of cancellation of the same. Learned First Appellate Court has come to the findings upon consideration of the evidences adduced by the parties that plaintiff is in possession and the presumption of correctness of settlement record in favour of the defendant with a remark of forcible possession of the plaintiff has not been rebutted. Learned First Appellate Court as well as learned Trial Court has accepted the evidences of the plaintiff who stated in his deposition that in July, 1956 the defendant No. 1 trespassed into the suit plot and constructed the chala ghar thereon. Learned First Appellate Court has opined that a stray act of trespassed cannot amount to disposition. Learned First Appellate Court as well as learned Trial Court has accepted the evidences of the plaintiff who stated in his deposition that in July, 1956 the defendant No. 1 trespassed into the suit plot and constructed the chala ghar thereon. Learned First Appellate Court has opined that a stray act of trespassed cannot amount to disposition. The question of acquiring right, title and interest by the defendant No. 1 in the suit plot by adverse possession does not arise. I do not find any gross irregularity or illegality in the report submitted by the learned Pleader Commissioner indicating that areas of suit plot No. 340 of Western portion of non-suit plot No. 342 since recorded as bata plot no. 342/580, plot no. 342 and plot 339 do not tally with the areas mentioned respectively in lot No. 17 and lot no. 18 on schedule ‘ga’ and lot no. 15 of schedule ‘ka’. In such circumstances learned Pleader Commissioner relied upon the decision of this High Court reported in AIR 1934 Cal 841. Commissioner’s report can not be rejected without any defined and sufficient grounds. In the instant case I have already held that there is no such materials in the report questioning the integrity and carefulness of the Pleader Commissioner. In conclusion to sum up the matters in Second Appeal learned Counsel for the appellant raised five points to criticise the judgment impugned. Firstly the question of maintainability of the suit was raised on the ground that plaintiff has no title. Secondly, that the defendant is in possession since long and suit is barred by the provisions of Section 34 of the Specific Relief Act as there was no prayer for recovery of possession. Thirdly, there was gross mistake as to the report of the learned Pleader Commissioner and as such the location / identification of plot No. 340 could not be ascertained properly. Fourthly that defendant acquired a good title by adverse possession. And lastly, the defendant acquired right, title and interest by auction purchase and no Court can ignore the evidentiary value of such documents. I have no hesitation to hold that in view of the discussion and findings of the learned First Appellate Court in the judgment impugned, all the questions raised by the learned Counsel for the appellant as stated above have answered successfully and properly. I have no hesitation to hold that in view of the discussion and findings of the learned First Appellate Court in the judgment impugned, all the questions raised by the learned Counsel for the appellant as stated above have answered successfully and properly. Learned First Appellate Court has discussed nicely the evidences both oral and documentary placed before him by the parties and have come to a correct conclusion on the basis of evidences relating to facts as well as law. Therefore, in my considered view this Court requires no interference but to affirm the judgment of learned First Appellate Court. Thus, the appeal is dismissed on contest with cost to the respondent No. 1 and ex-parte without cost against the rest. The judgment and decree passed by learned Additional District Judge, First Court at Midnapore passed in Title Appeal No. 158 of 1975 is hereby affirmed. Let the Lower Court record be sent down.