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2016 DIGILAW 81 (CAL)

Nemai Chand Paul v. Sachindan Sukai

2016-01-25

JYOTIRMAY BHATTACHARYA, SHIVKANT PRASAD

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JUDGMENT : Jyotirmay Bhattacharya, J. The certified copy of the judgment and decree of the learned Trial Court which is filed by Mr. Chaturvedi, learned advocate appearing for the appellant in Court today, be kept with the record. 2. This second appeal is directed against the judgment and decree dated 12th March, 2015 passed by the Learned Additional District Judge 2nd Fast Track Court, Tamluk, Purba Medinipur in Title Appeal No. 30 of 2008 affirming the judgment and decree dated 20th February, 2008 passed by the Learned Civil Judge (Junior Division), 3rd Court, Tamluk, Purba Medinipur in Title Suit No. 77 of 2001, at the instance of the defendant/appellant. 3. Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41, Rule 11 of the Code of Civil Procedure, or not. 4. The plaintiffs filed a suit for declaration of their title in respect of the suit property and for injunction. The plaintiffs claimed that originally the suit property was owned by two brothers viz. Trilokya and Adaitya. On the death of Trilokya, the three sons of Trilokya viz. Prafulla, Gurupada and Amulya inherited the share of Triolkya in equal share. The plaintiffs further claimed that the other brother of Triolkya viz. Adaitya died bachelor and on his death, the three sons of Triolkya viz. Prafulla, Gurupada and Amulya inherited the share of Adaitya in equal share. The plaintiffs further claimed that the plaintiffs exchanged their property with Prafulla and Gurupada and by virtue of such exchange, the plaintiffs became a co-owner of the suit property along with the other son of Trilokya viz. Amulya to the extent of 7? decimals being the suit property. The plaintiffs thus, claimed a decree for declaration of their title to the extent of 7? decimals of land and injunction for protecting their joint possession in the suit property with the other son of Trilokya viz. Amulya. The defendant appeared in the said suit and filed a written statement claiming title in respect of the suit property. He claimed that Adaitya did not die bachelor. He said that Adaitya married a lady viz. Kamola and on the death of Adaitya, Kamola inherited the share of Adaitya in the suit property. Amulya. The defendant appeared in the said suit and filed a written statement claiming title in respect of the suit property. He claimed that Adaitya did not die bachelor. He said that Adaitya married a lady viz. Kamola and on the death of Adaitya, Kamola inherited the share of Adaitya in the suit property. He further claimed that subsequently, Kamola sold her interest in the suit property which she inherited from Adaitya to Tilottama. Tilottama was the original defendant in the said suit. On her death, her son was substituted who is now the appellant before us. 5. Though the entire dispute centers round the issue relating to the marriage of Adaitya with Kamola but no such issue was framed by the learned Trial Judge. However, the parties led their respective evidence with regard to the said dispute relating to the marriage of Adaitya with Kamola and ultimately, the Learned Trial Judge held that Adaitya never married Kamola. 6. The learned Trial Judge believed the plaintiffs' case that Adaitya died bachelor and as such, it was held that his interest devolved upon his three nephews. The Learned Trial Judge thus, disbelieved that Adaitya married Kamola and Kamola inherited the share of Adaitya. 7. The learned Trial Court held that since Kamola did not inherit anything from Adaitya, she could not have transferred any interest in the suit property legally and validly in favour of Tilottama. As such, Tilottama could not acquire any title in the suit property by virtue of the sale deed executed by Kamola in favour of Tilottama. 8. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the defendant/appellant filed an appeal before the learned first appellate court. The learned first appellate court while considering the said appeal held that the fate of the suit depends upon resolution of the dispute regarding the marriage between Adaitya and Kamola. The appeal court after discussing the pleadings of the parties and their evidence came to the conclusion that Adaitya died bachelor and he never married Kamola. Thus, the appeal court also affirmed the judgment and decree of the learned Trial Judge. 9. The legality and/or propriety of the said judgment and decree of the learned first appellate court is under challenge in this appeal before us. 10. Mr. Thus, the appeal court also affirmed the judgment and decree of the learned Trial Judge. 9. The legality and/or propriety of the said judgment and decree of the learned first appellate court is under challenge in this appeal before us. 10. Mr. Chaturvedi, learned advocate appearing for appellant submits that the plaintiffs' positive case was that Adaitya died bachelor and Kamola was the wife of Sanatan. 11. Mr. Chaturvedi thus, submits that since the plaintiffs pleaded that Adaitya died bachelor and he did not marry Kamola and the Kamola married Sanatan, it was the duty of the plaintiffs to prove that Adaitya did not marry Kamola and Kamola married Sanatan. 12. Mr. Chaturvedi pointed out from the evidence on record that his client has been able to prove that Sanatan married Sarala and not Kamola. According to him, since his client has been able to prove that Sarala was the wife of Sanatan and Sanatan never married Kamola, the plaintiff's claim that Adaitya did not marry Kamola ought to have been held to have been demolished. He thus, invited us to hold that a substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing. 13. We do not find any substance in such contention of Mr. Chaturvedi for the following reasons:- 14. Firstly, even if it is held that the defendant has succeeded in establishing that Sanatan did not marry Kamola and Sarala was the wife of Sanatan but by considering the proof of such fact, we cannot come to the conclusion that Adaitya married Kamola and the Kamola was the married wife of Adaitya. 15. On examination of the entire materials on record, we do not find any evidence wherefrom we can come to the conclusion that Adaitya ever married Kamola and on his death, Kamola inherited the share of Adaitya. Since the defendant wanted to establish his title on the basis of the interest of Kamola, we hold that unless the defendant succeeds in proving that Kamola being the wife of Adaitya inherited the share of Adaitya, the defendant cannot establish his title in the suit property. This is a special defence taken by the defendant. As such the burden of proof of such special evidence relating to marriage between Adaitya and Kamola rests on the defendant. 16. This is a special defence taken by the defendant. As such the burden of proof of such special evidence relating to marriage between Adaitya and Kamola rests on the defendant. 16. In our considered view, the defendant has failed to examine any competent witness to prove the marriage between Adaitya and Kamola. Neither the marriage certificate has been proved nor the priest nor the barber has been examined. Even no witness who participated in the marriage ceremony between Adaitya and Kamola was examined to prove the marriage between the Adaitya and Kamola. 17. As such, we are unable to accept of such submission of Mr. Chaturvedi that his client succeeded in proving the marriage between Adaitya and Kamola. 18. Before parting with, we like to mention here that even the mother of the plaintiff viz. Tilottama in a different proceeding arising out of a misc. judicial case admitted therein that Kamola is the wife of Sanatan. This part of the admission of Tilottama in a judicial proceeding cannot be ignored altogether. 19. We thus, do not find involvement of any substantial question of law in this appeal. Accordingly, we decline to admit this appeal for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure. 20. The appeal is, thus, dismissed. 21. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.