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2015 DIGILAW 100 (CAL)

Sasadhar Bar v. Monoranjan Bar

2015-02-04

SUBRATA TALUKDAR

body2015
JUDGMENT SUBRATA TALUKDAR, J. This Second Appeal is directed against the judgment and decree dated 17th November, 1994 passed by the Ld. Assistant District Court at Baruipur in Title Appeal No. 58 of 1992 affirming the judgment and decree dated 31st August, 1992 passed by the Ld. 2nd Munsif, Baruipur in Title Suit No. 223 of 1981. Dr. Indrajit Mondal, Ld. Senior Counsel appears for the appellants, who are the successors-in-interest to the defendants in the suit. Shri Jiban Ratan Chatterjee, Ld. Senior Counsel appears for the respondent Nos.1 & 2-plaintiffs in the suit. Shri Biswaranjan Bhakat, Ld. Counsel appears for the other respondents-plaintiffs. The appeal was admitted on the following grounds:- (ii) For that the Ld. Judge erred in law in not declaring the Deed of Partition dated 23rd December, 1974 (Exbt. 4) as void as all the interested parties were not made parties properly in that Deed. (x) For that the Ld. Judge erred in law in holding that the share acquired by Gazendra by preemption is not proved by the defendant. While decreeing the said Title Suit Nos. 223 of 1981 for declaration of title and permanent injunction the Ld. Trial Court was pleased to, inter alia, observe and hold as follows:- (a) That the suit property at Schedule ‘A’ of the plaint with other properties measuring 40.21 acres as a whole originally belonged to one Shibu Bar who died intestate. The said Shibu Bar left behind five sons namely, Jadav, Sanatan, Rupchand, Dipchand and Umesh, all of whom inherited 3 annas 4 gondas share each. Jadav died leaving behind three sons namely, Sashi, Bhusan and Madhu. In the C.S. Khatian the names of Sasadhar, Rupchand, Dipchand and Umesh were recorded having 1/5th share and the names of the three sons of Jadav were recorded as having 1/5th share together. Sasadhar died leaving behind no heir and his share is inherited by his brother, Dipchand who then became 2/5th share holder in the family property. Umesh thereafter died leaving three sons namely, Birendra, Surendra and Dhirendra as well as his widow Ujjala. Bhusan, one of the heirs of Jadav died without leaving any issue and his share devolved upon his two brothers, Sashi and Madhu. (b) By a registered sale deed dated 13th Fabruary, 1941 the heirs of Umesh, Rupchand and Jadav sold their share to one, Gopal Krishna Naskar. Bhusan, one of the heirs of Jadav died without leaving any issue and his share devolved upon his two brothers, Sashi and Madhu. (b) By a registered sale deed dated 13th Fabruary, 1941 the heirs of Umesh, Rupchand and Jadav sold their share to one, Gopal Krishna Naskar. Dipchand died leaving three sons namely, Gajendra, Khagendra and Nagendra who also inherited shares in the family property. Khagendra died leaving behind the defendant No. 1 and proforma defendant Nos.2 to 8. Gajendra, son of Dipchand died leaving two sons namely, Mohan and Dhananjoy. (c) Gajendra, prior to his death, sold his entire share to the defendant No.1, Gopal Naskar, who in turn sold his entire share to the defendant Nos.1 to 7 and Mohan and Dhananjoy by registered Deed of Sale dated 30th November, 1953. The plaintiff purchased the share of Mohan and Dhananjoy which is marked as Schedule ‘A’ to the plaint and the subject matter of the suit. During the pendency of the suit the plaintiff also purchased the ‘B’ Schedule land which was thereafter transferred between the co-sharers by a registered deed dated 23rd December, 1974. In short the plaintiff received 5.06 sataks of ‘A’ Schedule land described in ‘Yna’ of the Partition Deed. That the defendant No.1 received 11.30 sataks described in ‘Gha’ Schedule of the Partition Deed dated 23rd December, 1974. (d) However, the names of Gajendra, Khagendra, the heirs of Dipchand were erroneously recorded in the R.S. record of rights (for short RSROR) and on the basis of such erroneous recording the defendant No.1 is claiming more than his allotted share on the basis of his purchase from Gajendra. On the basis of such claim the defendant No.1 is causing disturbance to the peaceful possession of the plaintiff in the suit property. (e) The case of the defendant No.1 in his written statement is that the Partition Deed dated 23rd December, 1974 is void and all the interested parties were not properly represented in the said Deed. According to the defendant No.1, Gajendra, one of the heirs of Dipchand acquired a larger share than represented in the Partition Deed and so the partition is void ab-initio. The defendant No.1 denies that the recording in the RSROR is erroneous and prays for dismissal of the suit. (f) The defendant No.22 filed a written statement accepting the defence of the defendant No.1. The defendant No.1 denies that the recording in the RSROR is erroneous and prays for dismissal of the suit. (f) The defendant No.22 filed a written statement accepting the defence of the defendant No.1. The proforma defendant Nos.4 & 12 filed the joint written statement and proforma defendant Nos.3, 6, 8 & 13 to 17 filed separate written statements virtually admitting the plaint case. (g) The suit was decreed by the predecessor-in-office of the Ld. Trial Court. Against such decree the defendant No.1 preferred an appeal and the appeal was disposed of by the Ld. 12th Additional District Court, Alipore by setting aside the judgment and decree and remanding the suit to the Ld. Trial Court for disposal afresh in the light of the observations made by the Ld. Appellate Court. (h) After recording the rival submissions of the Ld. Advocates for the plaintiff and for the defendants and on scrutiny of the materials on record, the Ld. Trial court found that the co-sharers in the family property namely, the proforma defendant Nos. 3, 4, 6, 8, 12 to 17 admitted to the genuineness of the Deed of Partition dated 23rd December, 1974. The Ld. Trial Court also observed that it is not the case of the defendant Nos. 1 & 22 that the Partition Deed was executed by practicing fraud upon the defendant No.1 in collusion with the other co-sharers. Importantly, the Ld. Trial court noticed that the vendor of the sons of the wife of the defendant No.1 was a attesting witness to the Deed of Partition. The Ld. Trial Court did not find the case on fraud attempted to be made out by the Ld. Advocate for the defendant No.1 strong and cogent. (i) Further noticing the share of Gajendra in the suit property and his subsequent transfer the Ld. Trial Court emphatically found nothing on record to show that the share of Gajendra was enhanced by purchase and preemption. The documents with regard to the purported preemption were not relied upon at the time of trial, either before or after remand. The argument on preemption was not even made out before the Ld. Appellate Court at the first instance. The Ld. The documents with regard to the purported preemption were not relied upon at the time of trial, either before or after remand. The argument on preemption was not even made out before the Ld. Appellate Court at the first instance. The Ld. Trial Court held that in the event Gajendra held an existing interest in the suit property at the time of execution of the Deed of Partition, he would not have signed the same deed as an attesting witness nor acquiesced to the same. (j) Furthermore, the Ld. Trial court noticed that heirs of Gajendra transferred the shares arising out of the Deed of Partition to the plaintiff during pendency of the suit thereby admitting the authenticity of the Deed of Partition. On the point of declaring the entry in the RSROR to be erroneous as prayed for by the plaintiff, the Ld. Trial Court did not find merit in such prayer since the shares of the respective parties arising out of the Deed of Partition as well as the transferee owners stood demarcated on the basis of the existing materials on record and, therefore, the State Government was not found to be a necessary party. The suit was accordingly decreed by holding that the plaintiff had acquired valid title in respect of ‘A’ Schedule land by virtue of the registered sale deed dated 27th September, 1972 and by virtue of separate allotment by the Deed of Partition dated 23rd December, 1974. The Ld. Appellate Court affirmed the judgment of the Ld. Trial court on the reasoning that being a party to the Partition Deed the defendant No.1 cannot now challenge the same. Accepting the Partition Deed to be genuine and the fact that the plaintiff received his share on the basis of the Partition Deed, the Ld. Appellate Court was of the view that the contesting defendants in the suit could not now claim the Partition Deed to be void since the defendant No.1 was a party and such Partition Deed had been acted upon. The Ld. Appellate Court also took notice of the reasoning of the Ld. Trial Court that the State of West Bengal cannot be considered to be an interested party to the suit which only involves the shares of the contesting private parties and such shares are found to be properly demarcated on the basis of the materials on record. The Ld. Appellate Court also took notice of the reasoning of the Ld. Trial Court that the State of West Bengal cannot be considered to be an interested party to the suit which only involves the shares of the contesting private parties and such shares are found to be properly demarcated on the basis of the materials on record. The appeal was accordingly dismissed and the judgment and decree of the Ld. Trial Court affirmed. Dr. Mondal, Ld. senior Counsel has urged before this Court the following:- (i) That the Partition Deed is invalid because all the co-sharers did not join in the Partition Deed. (ii) The correctness of the RSROR can be only judged by the Revenue Officer. Placing the provisions of the West Bengal Estates Acquisition Act, 1953 and particularly Section 57B (2), Ld. Counsel points out that there is a bar upon the Civil Court to entertain a dispute with regard to the correctness of a RSROR. Pointing out that the RSROR was the basis of the claim of the defendant No.1 and the plaintiff claimed his share on the basis of the C.S. Record of Rights (for short CSROR), Ld. Counsel argues that of the two, RSROR shall prevail. The RSROR, which is in favour of Gajendra’s share must be presumed to be correct and, preemption has not been disproved. (iii) Placing the commentary of ‘Mitra on Partition’, Dr. Mondal argues that it is the sine qua non of a Deed of Partition that it must be signed by all the co-sharers. The Ld. Trial Court committed an error by holding that the Deed of Partition was correct because it was not the outcome of a fraud. According to Ld. Counsel the issue is whether the Deed of Partition was signed by all the co-sharers. (iv) Arguing further Dr. Mondal submits that in 1974 the co-sharers would be the owners as recorded in the RSROR. Both the Ld. Trial Court and the Ld. Appellate Court were persuaded on the wrong premise of the CSROR. In support of his submissions Dr. Mondal relies upon Bhabendra Nath Thakur vs. Parul Bala Das, 1979 (2) CLJ 44 and Others in support of the proposition that in the case of a conflict between entries in the record of rights, the latter entry must be held to prevail. Appellate Court were persuaded on the wrong premise of the CSROR. In support of his submissions Dr. Mondal relies upon Bhabendra Nath Thakur vs. Parul Bala Das, 1979 (2) CLJ 44 and Others in support of the proposition that in the case of a conflict between entries in the record of rights, the latter entry must be held to prevail. Therefore the RSROR, being the latter entry, should be held to prevail over the CSROR. Also relying on Jatindra Nath Malik vs. Sushilendra Nath Palit, Dr. Mondal, AIR 1965 Cal 328 , argues that the presumption lying in favour of the correctness of the record need not be proved. Ld. Counsel also relies upon Narendra Kante vs. Anuradha Kante and Others, 2010 (2) SCC 77 on the point that a Deed of Partition which is not signed by all the co-sharers cannot be considered to be valid. Per contra Shri Jiban Ratan Chatterjee, Ld. Senior Counsel for the respondents submits that the only point to be taken into consideration by this Court sitting in second appeal is whether the Deed of Partition was void or not. Shri Chatterjee submits that the defendant No.1 is admittedly a signatory to the Deed of Partition. He further submits that admittedly the suit has been filed for declaration of title and not for correcting the RSROR. Taking this Court to the judgment of the Ld. Trial Court, Ld. Counsel points out that the plaintiff purchased from Mohan and Dhananjoy which was connected to Gajendra’s share. The transfer of such share in favour of the plaintiff was made subsequent to the Deed of Partition. Moreover, the suit being based on declaratory reliefs and not for correcting the RSROR, the State cannot be held to be a necessary party. Shri Chatterjee argues that all the co-sharers at the relevant time to the Deed of Partition were made parties. The Partition Deed was acted upon and transfer of the suit property was made subsequent to the Deed of Partition. A subsequent transferee cannot be included in the Deed of Partition. Further arguing that the point on preemption not having upon raised before the Ld. Trial Court either before or after the order of remand passed by the Ld. 1st Appellate Court, the only point before the Ld. Trial Court on remand was whether the Partition Deed was void or not. Since both the Ld. Further arguing that the point on preemption not having upon raised before the Ld. Trial Court either before or after the order of remand passed by the Ld. 1st Appellate Court, the only point before the Ld. Trial Court on remand was whether the Partition Deed was void or not. Since both the Ld. Trial Court and the Ld. 1st Appellate Court having held concurrently on facts, there is little scope for interference by this Second Appellate Court. Shri Chatterjee further submits that in a suit for declaration of title there cannot be any application of Section 57B of the West Bengal Estates Acquisition Act, 1953. In support of his arguments Shri Chatterjee relies upon the following decisions:- AIR 1978 Cal 499 at Paragraph 5 in the matter of Satish Chandra Maity vs. Sial Bala Dassi and Others, 1975 (1) CLJ 154 in the matter of Ramkrishna Mullick and Others vs. State of West Bengal and Others, 1975 (2) CLJ 246 in the matter of Tarak Chandra Dholey vs. Satyanarayan Singh and Another. Having considered the rival submissions and the materials on record this Court primarily notices that the detailed finding on facts recorded by the Ld. Trial court has been affirmed by the Ld. 1st Appellate Court. In the face of such concurrent findings, unless found to be perverse, there is little scope for interference by the Second Appellate Court. The Ld. Trial Court correctly noticed that Gajendra is an attesting witness to the Deed of Partition. It was also noticed by the Ld. Trial Court in detail that at paragraph 17 of his written statement Gajendra sold 8.65 and half satak land to the defendant No.1 by two registered sale deeds. He also transferred other lands to other parties by different registered sale deeds. In total Gajendra transferred 19.19 acres and inherited 1/3rd share in the property left by Dipchand. Thereby Gajendra inherited 5.37 acres of land being 1/3rd share of 16.10 acres of land owned by Dipchand. The Ld. Trial Court found it surprising that Gajendra sold more than his inherited 1/3rd share of 5.37 acres by two registered sale deeds dated 8th August, 1963 (Exbt. A(s) and 19th May, 1965 (Exbt. A(b) although he inherited less namely, 5.37 acres. The Ld. The Ld. Trial Court found it surprising that Gajendra sold more than his inherited 1/3rd share of 5.37 acres by two registered sale deeds dated 8th August, 1963 (Exbt. A(s) and 19th May, 1965 (Exbt. A(b) although he inherited less namely, 5.37 acres. The Ld. Trial Court correctly found that in the event Gajendra had an existing interest in the property at the time of execution of the Deed of Partition, he would not have signed the said Deed as an attesting witness. No case on preemption was made out before the Ld. Trial Court connected to the purported enhanced share of Gajendra in the suit property. Furthermore, the heirs of Gajendra also transferred the share allotted to them by the Deed of Partition in favour of the plaintiffs during pendency of the suit. Thus, not only Gajendra was an attesting witness to the Deed of Partition but, even the shares allotted to his heirs arising out of the Deed of Partition, was transferred by them in favour of the plaintiff during pendency of the suit. The argument of Dr. Mondal that the Partition Deed could not survive as all parties were not signatories to the same stands rebutted by the fact that the Deed of Partition was executed on 23rd December, 1974 subsequent to the transfer of his share by Gajendra in favour of the defendant No.1 and thereafter the defendant Nos.1 to 7 and to the sons of Gajendra, Mohan and Dhananjoy. To the subsequent Deed of Partition Gajendra signed as an attesting witness. Therefore, the defendant No.1 cannot be allowed to turn around at this stage by questioning the allotment of shares in terms of the Deed of Partition on the ground that Gajendra acquired more share by way of preemption or that the Partition Deed was neither bona fide nor could be acted upon. Besides, no counter suit or counter claim was filed by the defendant No.1 claiming that the RSROR is erroneous. Defendant No.1 has merely set up a defence and has not prayed for any positive reliefs making the State a necessary party. In the light of the above facts this Court is sufficiently persuaded to hold that no error of law was committed by the Ld. Trial Court by relying upon the validity of the Deed of Partition. Neither did the Ld. In the light of the above facts this Court is sufficiently persuaded to hold that no error of law was committed by the Ld. Trial Court by relying upon the validity of the Deed of Partition. Neither did the Ld. Appellate Court commit an error of law in affirming the painstaking findings of the Ld. Trial Court on this score. The substantial questions of law relied upon by the Appellant while admitting the appeal are thus answered in the negative. Thus, the appeal fails. SA 46 of 1996 is dismissed. There will be, however, no order as to costs.