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2016 DIGILAW 10 (CAL)

Sribash Das v. Shibendra Chandra Das

2016-01-05

JYOTIRMAY BHATTACHARYA, SHIB SADHAN SADHU

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JUDGMENT : Jyotirmay Bhattacharya, J. This second appeal is directed against the judgment and decree dated 22nd April, 2015 passed by the learned Additional District Judge, Sadar, Cooch Behar in Title Appeal No. 12 of 2011 affirming the judgment and decree dated 31st May, 2011 passed by the learned Civil Judge (Senior Division), Dinhata in Title Suit No. 20 of 2005 at the instance of the defendant no.1/appellant. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not. The plaintiff/respondent no.1 filed a suit for partition of the suit property against his co-sharers. The defendant no.1 is admittedly a co-sharer as the defendant no.1 admittedly purchased 66 decimals of land from the plaintiff viz. Sibendra Chandra Das and his brother Jatindra Chandra Das through a registered deed of kobala being No.5055 dated 19th April, 1982. Plaintiff claims that he has share in the suit property to the extent of 1.33 acres of land. Since the co-sharers felt inconvenience in possessing the suit property jointly, the plaintiff filed the said suit for partition against his co-sharers. Defendant no.1/appellant contested the said suit by filing written statement. Though the defendant no.1 did not deny his purchase of 66 decimals of land out of the suit property from the plaintiff and his brother viz. Jatindra Chandra Das, but he wanted to establish his title in respect of 1.42 decimals of land on the strength of recording of his name as raiyat in the finally published R.S. record of rights. Both the courts below, after considering the pleadings of the parties and the evidence led by them, concurrently held that the plaintiff successfully proved his title in respect of 1.33 acres of land which he purchased from the recorded owners viz. Nityamayee Barman and Kaltu Roy Barman. Registered sale deeds through which the plaintiff acquired his title in the suit property were also admitted into evidence on proof and those deeds were exhibited as Exhibits 1, 2 and 3. Nityamayee Barman and Kaltu Roy Barman. Registered sale deeds through which the plaintiff acquired his title in the suit property were also admitted into evidence on proof and those deeds were exhibited as Exhibits 1, 2 and 3. When title of the plaintiff in respect of 1.33 acres of land was found by both the courts below on the basis of those registered deed of kobalas, we hold that the courts below did not commit any illegality in declaring title of the plaintiff in respect of 1.33 acres of land. Both the courts below concurrently held that the defendant no.1 purchased 66 decimals of land out of the suit property from the plaintiff and his brother viz. Jatindra Chandra Das. Having regard to the fact that the defendant no.1 purchased a portion of the suit property from the plaintiff and his said brother, both the courts below rightly held that the defendant no.1 cannot dispute the title of the plaintiff over the suit property as he is also claiming title through the plaintiff in the suit property. Both the courts below, thus, by applying the principle of estoppel enunciated under Section 115 of the Evidence Act held that the defendant no.1 is estopped from challenging the title of the plaintiff as he himself purchased a portion of the suit property from the plaintiff by admitting his title. We do not find any infirmity and/or illegality in this part of the findings of the courts below. It is well settled that the record of rights is not a document of title. Recording of one’s name in the record of rights as raiyat neither creates title in him nor such recording extinguishes the title of a lawful owner. As such, we hold that both the courts below rightly rejected the contention of the defendant about his acquisition of title in respect of 1.42 acres of land on the strength of recording of his name as raiyat in the R.S. record of rights. We also do not find any substance in the contention of the defendant no.1/appellant that the suit is not maintainable for defect of parties. Here, we find that all the co-sharers were impleaded as parties in the suit. We also do not find any substance in the contention of the defendant no.1/appellant that the suit is not maintainable for defect of parties. Here, we find that all the co-sharers were impleaded as parties in the suit. We hold that both the courts below rightly held that the two daughters of Promothababu are not necessary parties in the suit as the plaintiff did not claim title in the suit property by virtue of inheritance through Promothababu, but he claimed his title in respect of the suit property by virtue of purchase of the suit property by himself along with his two brothers viz. Jatindra Chandra Das and Jitendra Chandra Das. Having regard to the fact that the suit property was self-acquired property by the plaintiff and his two brothers, we hold that the daughters of Promothababu are not necessary parties in the suit. We thus do not find any infirmity in the findings of both the courts below in this regard. Accordingly, we do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted. We thus decline to admit this appeal for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. The appeal thus stands dismissed. Re: CAN 6545 of 2015 (Stay) Since we have not admitted the appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN 6545 of 2015 is thus deemed to be disposed of.