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2017 DIGILAW 499 (CAL)

Durgabala Chakraborty v. Hare Krishna Chakraborty

2017-05-19

TAPASH MOOKHERJEE

body2017
JUDGMENT : 1. The present second Appeal is against the judgment and order dated, 30.05.1997 passed by the learned Civil Judge, (Senior Division), Ghatal in Title Appeal No. 17 of 1996 whereby the aforesaid First Appellate Court set aside the judgment and decree of dismissal of the Suit passed by the erstwhile learned Munsif, Ghatal in T. S. No. 167 of 1994 and granted the reliefs as prayed for by the plaintiffs in the Suit. 2. Smt Durgabala Chakrahorty and two others who were the Defendants in the Suits are the Appellants and Hare Krishna Chakraborty and two others the Plaintiffs in the Suit, are the Respondents herein. 3. The Respondents/Plaintiffs’ cases in the Suit were as follows:- 4. An area of 49 decimals in plot No. 817 and 12 decimals in plot No. 823 totalling an area of 61 decimals detailed in Schedule ‘Ga’ to the plaint is the Suit property. According to the Respondents, the Suit property originally belonged to one Bipin Bihari Sarkar and C. S., R-O-R was prepared and published accordingly. The said Bipin Bihari died leaving behind his wife Jnanada Bala and a daughter and according to the then prevailing law, Jnanada Bala alone inherited the Suit property and she by a deed of sale executed on 04.01.1928 and registered on 06.01.1928 transferred the Suit property to one Sitangshu Bhushan Chakraborty. Sitangshu constructed a house consisting of two rooms over a portion of the Suit plot No. 817 described in detail, in Schedule ‘Ka’ to the plaint and continued his possession over the entire Suit property till his death 5. Sitangshu died in the year 1365 B. S. leaving behind the Respondents as his legal heirs. One Mihir Lal Chakraborty the predecessor-in-interest of the Appellants/Defendants was the brother of Sitangshu, who had his dwelling-house over the non-Suit plot No. 829, where he used to reside with his family. Mihir Lal died in the year 1364 B. S. and his dwelling-house was totally destroyed due to heavy rainfall in the year 1392 B. S. The Appellants, therefore, became homeless. So, the Appellants approached the Respondents to allow them to reside temporarily in the house in ‘Ka’ scheduled Suit property on assurance to vacate the same as and when asked to do so. The Respondents out of sympathy granted permission orally to the Appellants to occupy the house in the ‘Ka’ scheduled Suit property. So, the Appellants approached the Respondents to allow them to reside temporarily in the house in ‘Ka’ scheduled Suit property on assurance to vacate the same as and when asked to do so. The Respondents out of sympathy granted permission orally to the Appellants to occupy the house in the ‘Ka’ scheduled Suit property. Subsequently the Respondents required the house for their own use and occupation and hence they directed the Appellants to vacate the house under their occupation. But the Appellants refused to do so. The Respondents revoked their permission granted to the Appellants to occupy the house in the ‘Ka’ scheduled property and asked the Appellants to vacate it on 21st, Shrabon, 1401 B. S. But the Appellants refused to do so on the plea that they were the lawful owners of the Suit property as it was recorded in the R. S., R-O-R in the name of their predecessor-in-interest, Mihir Lal Chakraborty. 6. It was the further case of the Respondents that their predecessor-in-interest Sitangshu entrusted his brother Mihit Lal to get the Suit property recorded in his name during R. S. operation, but Mihir Lal betrayed his elder brother Sitangshu and got the Suit property illegally recorded in his name in the R. S., R-O-R and hence the R. S. record in connection with the Suit property was baseless and erroneous, and they were the lawful owners of the Suit property all along. 7. The Appellants/Defendants filed their written statement denying all the material allegations in the plaint and contested the Suit. It was the specific case of the Appellants that the Suit property originally belonged to one Upendra, Rajendra and Rakhal Chandra Gope and C. S., R-O-R was accordingly prepared and subsequently their tenancy was terminated and the Suit property went under the ‘Khas’ possession of the then landlord one Krishna Pada Bandyopadhya who settled it to Mihir Lal Chakraborty, the predecessor-in-interest of the Appellants. The said Mihir Lal paid rent and on the basis of such settlement and his possession, the Suit property was recorded in R. S., RO-R in his name and after his death the Appellants inherited the Suit property and continued their possession on payment of rent till date. 8. As many as eight issues were framed in the Suit. The said Mihir Lal paid rent and on the basis of such settlement and his possession, the Suit property was recorded in R. S., RO-R in his name and after his death the Appellants inherited the Suit property and continued their possession on payment of rent till date. 8. As many as eight issues were framed in the Suit. Parties tendered their evidences oral as well as documentary and after considering the evidence on record the Trial Court decided all the issues against the present Respondents and dismissed the Suit. Being aggrieved by such decision, the Respondents preferred the Title Appeal No. 70 of 1996. The aforesaid appeal was allowed and the Suit was decreed by the First Appellate Court. Being dissatisfied with such decision of the First Appellate Court, the Defendants in the Suit preferred the present second Appeal. 9. At the time of admission of the Appeal the following substantial question of law was framed for hearing:- Whether the Learned Court of Appeal below erred in law in reversing the judgment and decree passed by the Learned trial judge holding that even the title must be presumed to have been passed although the Learned Trial Judge has arrived at a finding after considering all the materials on record that no such title has passed on the respondent by reason of the said document? 10. Learned Advocate Mr Mitra appearing for the Appellants submitted that Bipin Bihari Sarkar had never any right, title or interest in the Suit property as claimed by the Respondents and hence the question of Jnanada Bala’s inheriting the Suit property does not arise at all. He further submitted that in the deed of sale dated 06.01.1928 (Exhibit- 1) purported to have been executed by Gananda Bala, the scribe and the witness in the deed one Purna Chandra Roy put his signature allegedly on behalf of the vendor Gananda Bala. But no authority or power of the said Purna Chandra Roy to execute the deed on behalf of the vendor Jnanada Bala was ever produced and the fact being so, the said deed, i. e., Exhibited - 1 on the basis of which the Respondents claim right, title and interest over the Suit property, is an illegal and void document. 11. Mr. 11. Mr. Mitra further submitted that the Respondents could not produce any rent receipt or any other document to show that the predecessor-in-interest of the Respondents paid rent for the Suit property to the landlord or after its vesting to the State, at any time after 1344 B. S. So, it is clear that even if the Suit property was settled to the predecessor-in-interest of the Respondents at any point of time, such settlement became extinct sometimes after 1344 B. S. On the other hand the Appellants produced rent receipts showing payment of rent to the then landlords from 1351 to 1360 B. S. and subsequently after vesting to the State and for such reasons the Suit property was recorded in the R. S., R-O-R in the name of the predecessor-in-interest of the Appellants and thereafter in the names of the Appellants in the L. R., R-O-R as well. In view of such facts and circumstances the Appellants could make out a better case of their title and possession than the Respondents, for which the learned Trial Court correctly dismissed the Suit but the learned First Appellate Court failed to appreciate the entire evidence on record and thereby set aside the judgment of the learned Trial Court erroneously. It is the further contentions of Mr. Mitra that from the evidence on record it is clear that the Suit is barred by adverse possession as well as Law of Limitation. 12. On the contrary, learned Advocate Mr. Bhattacharyya appearing for the Respondents submitted that since the deed of sale in question, i. e., Exhibit- 1 was properly registered according to law by a competent authority, there was the presumption that the deed was properly executed by the vendor. He further submitted that when a deed is signed by a person as the executant, on behalf of the vendor, production of such authority or power is not mandatory in law. It was the further contention of Mr. Bhattacharyya that the rent receipts produced by the Respondents, i.e., Exhibit- 2 series themselves were sufficient to show that the Suit property was settled to the predecessor-in-interest of the Respondents and since there was no direct evidence on record to show that such settlement was ever cancelled or abandoned, it should be presumed to have continued. 13. Bhattacharyya that the rent receipts produced by the Respondents, i.e., Exhibit- 2 series themselves were sufficient to show that the Suit property was settled to the predecessor-in-interest of the Respondents and since there was no direct evidence on record to show that such settlement was ever cancelled or abandoned, it should be presumed to have continued. 13. Me Bhattacharyya further submitted that the Respondents proved that the Appellants were in permissive occupation of the Suit property under them and after such permission was revoked, the Appellants were the trespassers in the Suit property and the R. S., R-O-R as well as the L. R., R-O-R were wrong. So, the learned First Appellate Court rightly set aside the judgment of the learned Trial Court and passed decree in the Suit in favour of the Respondents. 14. According to the Respondents, the Suit property originally belonged to one Bipin Bihari Sarkar as recorded in C. S., R-O-R and after his death the Suit property devolved upon his widow Jnanada Bala. But there is no evidence on record to show any right, title or interest of the said Bipin Bihari in the Suit property at any point of time. The Suit property was not recorded in the name of Bipin Bihari in C. S., R-O-R as found from Exhibit- A, i. e., the relevant C. S., R-O-R. 15. Exhibit-1 is a deed of sale purported to have been executed by Jnanada Bala, the widow of Bipin Bihari transferring the Suit property to one Sitangshu Bhushan Chakraborty, the predecessor-in-interest of the Respondents. The deed appears to have been signed by the scribe one Purna Chandra Roy on behalf of the vendor Jnanada Bala. It should be further mentioned that neither the L. T. I. nor the signature of the said Jnanada Bala does appear in the deed, as the vendor. It was mentioned in the deed that the vendor Jnanada Bals signed the deed through the pen of the scribe Purna Chandra Roy. But how the said Purna Chandra Roy got the authority to execute the deed on behalf of the vendor Jnanada Bala is not known as no such power or authority has been produced at the time of the registration of the deed or subsequent thereto. 16. According to Mr. But how the said Purna Chandra Roy got the authority to execute the deed on behalf of the vendor Jnanada Bala is not known as no such power or authority has been produced at the time of the registration of the deed or subsequent thereto. 16. According to Mr. Bhattacharyya submission of any written power or authority is not mandatory in law and the registering authority after being satisfied about the execution, allowed the registration of the deed and hence a presumption under Section 114 (e) of the Evidence Act is available in favour of the Respondents. Mr. Bhattacharyya has cited two decisions in his support, one reported in 29 C.W.N. 539 (Monmotho Nath Mukherjee and others versus Purna Chand Nahatta) and the other reported in AIR 1928 P.C. 38 (Purna Chandra Nahatta versus Monmotho Nath Mukherjee and others). 17. In the case reported in 29 C.W.N. 539, a conveyance was executed by a constituted attorney of the executants, but the said power was not produced initially. Subsequently a constituted attorney of the executant produced his power at the time of registration of the conveyance and admitted the execution of it on behalf of the executant. So, what was initially wanting was subsequently met up. Hence, the validity of the execution was accepted. The case reported in AIR 1928 P.C. 38 was the decision of the Privy Council in an appeal against the original decree and the aforesaid decision in 29 C.W.N. 539 was affirmed in that appeal. In the present case, no person duly authorised by Jnanada Bala admitted the execution of the deed in question by Jnanada Bala. So, the decisions are of no help to the Respondents. 18. Section 34 of the Registration Act provides the procedure to be followed by the registering authority before registration of a document. The object of the procedure is to ensure that a document purporting to have been executed by a person has been really executed by such person or by his authorised agent. The provision is mandatory, but it is not found in the present case that the procedure thus laid down in the law, has been properly followed by the registering authority before the registration of the deed in question, i.e., Exhibit-1. 19. Mr. Bhattacharyya has referred the provision in Section 68 of the Evidence Act on the point. The provision is mandatory, but it is not found in the present case that the procedure thus laid down in the law, has been properly followed by the registering authority before the registration of the deed in question, i.e., Exhibit-1. 19. Mr. Bhattacharyya has referred the provision in Section 68 of the Evidence Act on the point. Section 68 of the Evidence Act is applicable when a document is required to be attested. A deed of sale does not require to be proved by any attesting witness. So, it has no application in the present case. 20. Mr. Bhattacharyya wants to rely upon the presumption under Section 114 (e) of the Evidence Act. Presumptions under Section 114 of the Evidence Act are rebuttable presumptions. As mentioned above Exhibit-1 itself suggests that the mandatory provision of the Registration Act has not been followed in the case. So, the presumption is not available to the Respondents. 21. Learned First Appellate Court totally relied upon the Exhibit-1 just on the ground that it was an ancient document, as mentioned in Section 90 of the Evidence Act. 22. Section 90 of the Evidence Act speaks about the admissibility of an ancient document. It dispenses with the formal proof of a 30 years old document. There is no presumption in the provision as to the requisite authority of a person to execute a document and it does not empower the Court to raise up a presumption as to the existence of an authority on the part of the agent to represent the person. The decision reported in AIR 1956 S.C. 305 (Harihar Prasad Singh and Another versus Deonarain Prasad and Others) cited by Mr. Mitra, is relied on the point. It should be mentioned here that the signature or the L.T.I. of the executant does not appear in Exhibit-1 nor the authority of the person representing the executant has been proved in the case. When one person signs in a deed for the other it cannot be legally presumed that such person signing the deed has the legal authority to do so. The decision reported in AIR 1921 Oudh 55 {(Thakur) Raghubar Singh versus Thakur Sanwal Singh} cited by Mr. Mitra, is relied upon. To be specific, there is no presumption of genuineness of a document under Section 90 of the Evidence Act. The decision reported in AIR 1921 Oudh 55 {(Thakur) Raghubar Singh versus Thakur Sanwal Singh} cited by Mr. Mitra, is relied upon. To be specific, there is no presumption of genuineness of a document under Section 90 of the Evidence Act. The decision reported in AIR 1948 Madras 388 (S.K. Ramaswami Goundan versus S.N.P. Subbaraya Goundan and others) also cited by Mr. Mitra is relied upon. 23. The learned First Appellate Court was, therefore, wrong to put all reliance on Exhibit-1 just for the reason that it was an ancient document. 24. Having thus considered all the facts and circumstances of the case I have no hesitation to hold that Exhibit – 1 is not a legal document and hence, it could not confer any right, title or interest on Sitangshu Bhushan Chakraborty. 25. Let us now assume for the sake of logic that the Suit property was settled at one point of time to Sitangshu Bhushan Chakraborty, the predecessor-in-interest of the Respondents, as found from the rent receipts, i. e., Exhibit-2 series issued in his name by the landlord. But such rent receipts have been produced for the period of 1334 B. S. to 1344 B. S. only and no rent receipts for any period thereafter has been filed by the Respondents. On the other hand, rent receipts were issued from the ‘Sheresta’ of the same landlord in the name of one of the Appellants for the period from 1351 B. S. to 1360 B. S. (Exhibit- B series). It should be noted here that who paid the rent for the Suit property for the period from 1344 to 1351 B. S. is not known. The Suit property was recorded in the R. S., R-OR in the name of Mihir Lal Chakraborty the predecessor-in-interest of the Appellants (Exhibit-C) and the said Mihir Lal Chakraborty and his successors paid rent to the State all along thereafter. 26. Learned First Appellate Court did not accept the validity of the rent receipts produced by the Appellants on the grounds firstly, that those rent receipts were not registered and secondly, that the plot numbers for which rent was paid were not mentioned in the rent receipts. Needless to say, a rent receipt does not require any registration and plot numbers are not always mentioned therein as rents are collected on the basis of other descriptions of the land. Needless to say, a rent receipt does not require any registration and plot numbers are not always mentioned therein as rents are collected on the basis of other descriptions of the land. It is surprising to note that the learned First Appellate Court has not applied the same rule while accepting the rent receipts produced by the Respondents. If the rent receipts in favour of the Respondents proved the settlement of the Suit property in favour of the Respondents, then the subsequent rent receipts issued in favour of the predecessor-in-interest of the Appellants also proved the settlement of the Suit property in favour of the predecessor-in-interest of the Appellants. The learned Appellate Court’s view on the point is, therefore, completely against the law or logic. 27. Admittedly the Suit property is recorded in the R. S., R-O-R in the name of Mihir Lal Chakraborty the predecessor-in-interest of the Appellants (Exhibit-C). Mihir Lal Chakraborty is a brother of Sitangshu Bhushan Chakraborty the predecessor-in-interest of the Respondents. It was the case of the Respondents that Sitangshu being illiterate, entrusted his brother Mihir to get the Suit property recorded in his name during the R. S. operation. There is no cogent evidence for the Respondents to support such blind entrustment; on the contrary P. W. -1 himself admitted that his father was literate. He further admitted that all the properties owned by his father, except the Suit property, was duly recorded in the name of his father. The fact being so, the allegation of fraud by Mihir upon his elder brother Sitangshu in respect of recording of the Suit property in R. S., R-O-R, does not find any basis. Moreover, according to P. W.- 1, they came to know in the year 1380 B. S. that the Suit property was not recorded in the name of their father in the R. S., R-OR. But even after such knowledge they had not taken any step according to law for the correction of the R. S., R-O-R and they filed the Suit long after 20-year from the date of such knowledge. The facts obviously speak volume against the Respondents claims. 28. But even after such knowledge they had not taken any step according to law for the correction of the R. S., R-O-R and they filed the Suit long after 20-year from the date of such knowledge. The facts obviously speak volume against the Respondents claims. 28. It was a specific case of the Respondents that Mihir Lal Chakraborty, i. e., the predecessor-in-interest of the Appellants had his dwelling-house in non-suit plot Number 829 in the same Mouza which was completely destroyed due to heavy rainfall in the year 1392 B. S. for which the Appellants became homeless and on request of the Appellant No. 1 the Respondents permitted the Appellants to reside temporarily in a house in the Suit property constructed and possessed by the predecessor-in-interest by the Respondents, on condition that the Appellants would vacate the house as and when demanded, but the Appellants refused to do so for which the Suit was filed by the Respondents. But the evidence of the Respondents witnesses on the point is totally contradictory. P. W.- 1 stated that his uncle Mihir Lal was alive when his dwelling-house was destroyed in rain, but P. W. -2 stated in cross-examination that permission was granted to the Appellants to stay in the house in the Suit property about 30/35-year after the death of Mihir Lal. The evidence of P. W.-3 on the point was more peculiar. According to him, the Appellants started residing in the house upon the Suit property about 10-year after the destruction of their own house, but on repeated asking by the Court, the witness failed to say where the Appellants had been residing during those 10-year. So, the Respondents claim on the point has no base to stand upon. 29. As discussed above, the entire case of the Respondents are based upon, at first the registered deed, i. e., Exhibit -1 which has been considered to be a void document. The Respondent’s case rest thereafter, upon some rent receipts, i. e., Exhibit- 2 series. There are several gaps in the claims of the Respondents and the oral evidence of the Respondents is full of inconsistencies and contradictions. 30. On the other hand, the Suit property stands recorded in the C. S., R-O-R in the names of one Upendra Nath, Rajendra Nath and Rakhal Chandra Gope (Exhibit - A) as claimed by the Appellants. There are several gaps in the claims of the Respondents and the oral evidence of the Respondents is full of inconsistencies and contradictions. 30. On the other hand, the Suit property stands recorded in the C. S., R-O-R in the names of one Upendra Nath, Rajendra Nath and Rakhal Chandra Gope (Exhibit - A) as claimed by the Appellants. From the Exhibit- B series, it is further found that the Appellants paid rent to the landlords from 1351 B. S. to 1360 B.S. 31. As discussed earlier, the Respondents paid rents for the Suit property to the landlord for the period between 1334 B. S. to 1344 B. S. only and thereafter they did not pay any rent for the Suit property to any authority. On the other hand the Appellants paid rent for the Suit property to the same landlord from 1351 to 1360 B. S. The fact itself goes to show that if the Suit property was ever settled to the predecessor-in-interest of the Respondents, then such settlement was either cancelled or abandoned at any subsequent stage, as the Respondents failed to prove the continuation of such settlement. West Bengal Estate Acquisition Act came into force and the Suit property was recorded in the name of the predecessor-in-interest of the Appellants, Mihir Lal Chakraborty, in the R. S., R-O-R and the Appellants paid rent to the State and the Suit property was recorded in the name of the Appellants in the L. R., R-O-R. All the aforesaid chain of documents prove the Appellants’ claim of right, title and possession over the Suit property. 32. P. W.- 1 stated that the Appellants claimed their right, title and interest over the Suit property in the year 1380 B. S. corresponding to English calendar year 1974 and refused to vacate the Suit property, and thereafter they came to know about the recording of the Suit property in the names of the Appellants. But the present Suit was filed in the year 1994, i. e., about 20-year after the Appellants asserted their hostile rights and titles in the Suit property. The Trial Court had, therefore, rightly held that the Suit was barred by adverse possession as well as Law of Limitation. 33. To conclude, learned Trial Court had considered all the evidences on record adduced by both the parties and by a well reasoned judgment dismissed the Suit. The Trial Court had, therefore, rightly held that the Suit was barred by adverse possession as well as Law of Limitation. 33. To conclude, learned Trial Court had considered all the evidences on record adduced by both the parties and by a well reasoned judgment dismissed the Suit. On the other hand, the learned First Appellate Court set aside the judgment of the learned Trial Court on the basis of some baseless and erroneous reasons and without considering the entire evidence on record, especially the question of legality of the Exhibit-1 which was the starting point of the Respondents’ claim of right, title and interest over the Suit property. The question of law formulated at the time of admission of the appeal, is accordingly answered. 34. In view of what has been discussed and held above, the present appeal should be allowed. Accordingly the present appeal being S. A. 70 of 1998 is allowed on contest without any costs. The judgment and order dated 30.05.1997 passed by the learned First Appellate Court in Title Appeal No. 70 of 1996 is hereby set aside and the judgment and decree of dismissal of the Suit passed by the Trial Court in T. S. No. 167 of 1994 is restored and affirmed. 35. The L. C. Rs. along with a copy of this judgment and order be returned to the Court below. 36. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.