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2015 DIGILAW 799 (GAU)

Bibha Rani Kar v. Nilima Kar

2015-06-23

A.K.GOSWAMI

body2015
JUDGMENT Heard Mr. M.H. Rajbarbhuiya, learned counsel for the appellants and Mr. N. Dhar, learned counsel for the respondent. 2. This is an appeal preferred by the defendants against the judgment and decree dated 21.01.2003 passed by the learned Civil Judge (Sr. Divn.), Karimganj in Title Appeal No.48/1996, dismissing the appeal and thereby affirming the judgment and decree dated 09.07.1996 passed by the learned Munsiff No.1, Karimganj in Title Suit No.333/1998. 3. This appeal was admitted to be heard by an order passed on 07.09.2007 on the following substantial question of law:- “Whether the findings of the learned court below regarding the amicable settlement of the suit property are perverse one ?” 4. The case set out in the plaint by plaintiff Nilima Kar is that Late Jogendra Ch. Kar was the original owner of 2 Hal and 3 ½ kedar land. He died leaving behind 5 children – 3 sons, namely, Jitesh Kar, Hrishikesh Kar and Madhuresh Kar and 2 daughters, namely, Nilima Kar and Sushma Dey. There was an amicable settlement amongst the legal representatives of Late Jogendra Ch. Kar and as a result of such settlement, plaintiff got her share measuring 5 ½ Kedar in 3rd Schedule and she was possessing the land within 1st Schedule, which fell in her share, exclusively and continuously. Jitesh Kar and Hrishikesh Kar died. Defendant Nos.1 to 6 are the legal heirs of Jitesh Kar and the defendant Nos.7 to 14 are legal heirs of Hrishikesh Kar. Defendant Nos.1 and 7, who are the wives of Jitesh Kar and Hrishikesh Kar, respectively, in collusion with the other defendants, were trying to create deeds of alienation in respect of 3rd Schedule and accordingly, the plaintiff filed a suit for declaration of right, title and interest of the plaintiff over the land measuring 5 ½ kedar described in 3rd Schedule of the plaint, within land measuring 2 Hal, 3 ½ kedar described in 1st Schedule. The plaintiff had alternatively prayed that in the event of the court recording a finding that the 3rd Schedule land has not fallen into the share of the plaintiff by amicable partition as her 1/5th share, entire land of 1st Schedule be partitioned by the court and the share of the plaintiff to the extent of 1/5th of 1st Schedule be allotted. 5. 5. Defendant Nos.1, 4, 5, 7, 11 and 16 entered appearance and filed written statement, disputing amicable settlement and contending that the property left behind by Late Jogendra Ch. Kar was in ‘Ejmali’ possession, meaning thereby, that the property was enjoyed by them as co-sharers of the land. 6. Out of six issues framed, Issue No.4 relates to the question as to whether the plaintiff has right, title and interest over the suit land. While plaintiff examined 2 witnesses, defendants did not adduce any evidence. However, they had cross-examined the witnesses of the plaintiff. 7. Mr. Rajbarbhuiya, learned counsel for the appellants submits that in absence of any documentary proof regarding partition, the learned courts below was wholly wrong in holding that there was an amicable settlement and in decreeing the suit of the plaintiff. Per contra, Mr. Dhar has submitted that there is no dispute that the plaintiff is entitled to 1/5th share. It is submitted by him that it is not necessary that there has to be a document evidencing an amicable settlement and the learned courts below, on consideration of the evidence on record, came to the conclusion that plaintiff had proved her case including amicable partition and therefore, no interference is called for with regard to the finding of fact recorded by the courts below. It is submitted by him that it cannot be said that judgments of the courts below are perverse only because there was no documentary evidence regarding amicable settlement. 8. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 9. On consideration of the evidence on record, the learned trial court found Jitesh Kar and Hrishikesh Kar, the predecessors-in-interest of defendant Nos.1 to 6 and 7 to 14, respectively, had sold land falling in their share. The other brother Madhuresh Kar had also sold a portion of his land to the plaintiff. The plea taken by the defendants that there was no amicable settlement, in view of transfers made by way of sale of the properties left behind by Late Jogendra Ch. Kar by their own predecessors, has no legs to stand. The learned trial court also recorded the finding that the plaintiff had been in possession of the 3rd Schedule land and cultivating the same. 10. In view of the above, I am unable to subscribe to the submission of Mr. Kar by their own predecessors, has no legs to stand. The learned trial court also recorded the finding that the plaintiff had been in possession of the 3rd Schedule land and cultivating the same. 10. In view of the above, I am unable to subscribe to the submission of Mr. Rajbarbhuiya that because of absence of documentary evidence of amicable settlement, the impugned judgments are liable to be set aside. The plaintiff adduced evidence to demonstrate partition of amicable settlement based on which the predecessors of the defendants had also sold their share. 11. In the result, I find no merit in this appeal and accordingly, the same is dismissed. The substantial question of law is answered against the appellants. No costs. 12. Registry will send back the records.