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2018 DIGILAW 183 (TRI)

Jyotsna Rani Sarkar v. Rabindra Sarkar

2018-06-29

S.TALAPATRA

body2018
JUDGMENT & ORDER : This is an appeal under Section 100 of the CPC from the judgment dated 13.07.2015 delivered in Title Appeal No.06 of 2014 by the District Judge, West Tripura, Agartala by affirming the judgment dated 12.12.2013 delivered in Title Suit No.60 of 2006 by the Civil Judge, Senior Division, Court No.2, West Tripura, Agartala. 2. It is to be noted that by the said judgment dated 12.12.2013, the suit as instituted by the plaintiff-appellants being Title Suit No.60 of 2006 was dismissed. The appellants instituted the said suit for declaration that the plaintiffs are entitled to own 50% of the suit land which has been described hereinafter and for further declaration that they are entitled to get Rs.7,90,146.50/- from the sum as provided in the compensation i.e., Rs.23,69,597/- for acquisition of the land. Further declaration as has been urged is that a sum of Rs.7,90,146.50/- to be refunded by the defendants No.1, 2 and 6 to the plaintiffs. That apart, an additional declaration has been sought that Khatian No.1277 has been illegally created in the name of the defendants No.1, 2 and 6 inasmuch as they do not have any title over the suit land. SCHEDULE OF THE SUIT LAND Within District – West Tripura, P.S. East Agartala, Mouja – Kunjaban, Tehashil – Indranagar, under Khatian No.306 jer 2919 presently khatian No.708/1 & 807/2, Hal plot No.1993, 1994, 1997, 2044 & 1999 and 2000 within this plots land measuring 1.93 acre. 3. One Umesh Chandra Sarkar and another Ramesh Chandra Sarkar were the joint owners of the suit land along with some other land. The suit land was mutated in the Khatians No.807/1 and 807/2 of Mouja-Kunjaban, Tahashil-Indranagar. According to the plaintiffs who are the legal heirs of Umesh Charndra Sarkar, the defendants No.1, 2 and 6 who are the legal heirs of Ramesh Chandra Sarkar had illegally created Khatian No.1277 in their names, even though the joint property of Umesh Chandra Sarkar and Ramesh Chandra Sarkar was never partitioned amongst their legal heirs as the predecessors died intestate. In the year 1971, the entire property was requisitioned for the use of Indian Army and thus the said land was under possession of Indian Army till 1999. When the said land was under possession of Indian Army, the defendants No.1, 2 & 6 illegally created the said khatian No.1277 purportedly on the strength of one gift deed. In the year 1971, the entire property was requisitioned for the use of Indian Army and thus the said land was under possession of Indian Army till 1999. When the said land was under possession of Indian Army, the defendants No.1, 2 & 6 illegally created the said khatian No.1277 purportedly on the strength of one gift deed. 4. The defendants No.1, 2 and 6 had illegally received the money which was awarded for acquisition of the said property. The amount was beyond their entitlement. However the plaintiffs have admitted that the defendants No.1, 2 and 6 have their share in the property. The predecessor of the defendants namely Ramesh Chandra Sarkar had during his lifetime sold out the land measuring 0.73 acres by executing a registered sale-deed dated 05.08.1994 to one Smt. Laxmi Dhanuk for valuable consideration. The said land was also under the acquisition. The said predecessor of the defendants executed a gift deed for a piece of land measuring 1.20 acre in favour of the defendants No.1, 2 and 6, the land transferred by the sale-deed or the gift deed though transferred still remains the part of the joint property of the legal heirs of Umesh Chandra Sarkar and Ramesh Chandra Sarkar, the plaintiffs and the respondents respectively. 5. The defendants have received the compensation money for the said land measuring 1.20 acre without the knowledge of the plaintiffs. The plaintiffs have claimed not to have knowledge that such gift deed was executed by Ramesh Chandra Sarkar. Later on, the plaintiffs also came to know of the sale of the land measuring 0.73 acres in favour of Laxmi Dhanuk when the compensation money was awarded separately in favour of Smt. Laxmi Dhanuk. From the plaint, it can be gathered that under the said Khatians No.807/1 and 807/2, the total joint property was 4.42 acres. Out of which 2.91 acre was acquired and the compensation of Rs.23,69,597/- was awarded. The plaintiffs and the defendants of the suit had jointly received a sum of Rs.7,89,304/- for the land measuring 0.98 acres. But the defendants had directly received the compensation to the extent of Rs.9,66,845/- for the land measuring 1.20 acre and Laxmi Dhanuk had received a sum as compensation to the extent of Rs.6,13,448/- for the land measuring 0.73 acre. The defendants and Laxmi Dhanuk received the compensation for an aggregate land measuring 1.93 acre of land. But the defendants had directly received the compensation to the extent of Rs.9,66,845/- for the land measuring 1.20 acre and Laxmi Dhanuk had received a sum as compensation to the extent of Rs.6,13,448/- for the land measuring 0.73 acre. The defendants and Laxmi Dhanuk received the compensation for an aggregate land measuring 1.93 acre of land. According to the plaintiffs, the entire amount was supposed to be divided and they were entitled to the 50% of the compensation money of the said land measuring 1.93 acre which comes to Rs.7,90,146/-. Thus the defendants are liable to refund the sum of Rs.7,89,406.40/- to the plaintiffs. The amount was, according to the plaintiffs, received by the defendants illegally. For purpose of reference, it can be noted that the suit land was acquired by the LA Collector vide LA Case No.5/SDR/02. The defendants No.1, 2 and 6 have by virtue of Khatian No.1277 received the entire compensation money i.e. 9,66,845/-. In this background the suit has been instituted asking for the relief as above noted. 6. The plaintiffs gathered the knowledge of execution of the gift deed for the land measuring 1.20 acre and the instance of sale for the land measuring 0.73 acre respectively in favour of the defendants No.1, 2 and 6 and Laxmi Dhanuk. It is not in dispute that a compensation for the land measuring 1.93 acre (1.20 acre + 0.73 acre) amounting to Rs.15,80,293/- was received by the defendants and Laxmi Dhanuk. Out of the said sum, according to the plaintiffs, they are entitled to 50% i.e., Rs.7,90,146/-. It has to be further noted that for the entire acquired land measuring 2.91 acre from the Khatians No.807/1 & 807/2, the compensation as awarded was Rs.23,69,597/-. The defendants are entitled to get 50% of the said share i.e.,11,84,798.50/-. But they have received Rs.19,74,345/- in aggregate meaning they have received Rs.7,89,546.50/- beyond their entitlement whereas they are entitled to only Rs.3,94,652/-, according to the plaintiffs, for the remaining part of the land measuring 0.98 acre. 7. By filing the written statement jointly the defendants No.1, 2 and 6 have stated that the entire land measuring 4.42 acre (11 kani 1 ganda) comprised in 19 survey plots under Kunjaban Mouja which was purchased by Ramesh Chandra Sarkar from his own fund, but in the joint name of the two brothers viz. Umesh Chandra Sarkar and Ramesh Chandra Sarkar. Umesh Chandra Sarkar and Ramesh Chandra Sarkar. The said joint property was amicably partitioned in the early 90s and Ramesh Chandra Sarkar died on 26.05.1998. But the said partition had taken place without any written instrument. Pursuant to the said oral partition, the share was divided by metes and bounds. In the said amicable partition, Ramesh Chandra Sarkar got ½ of the said compact land i.e. 2.21 acre (5 kani 10 & ½ gandas). Out of the said share measuring 2.21 acre, Ramesh Chandra Sarkar transferred a piece of land measuring 1.20 acre by executing a registered deed of gift on 05.08.1994. The defendants No.1, 2 and 6 had accepted the said gift and accordingly the record of right was mutated in their name by the Revenue Authority in the year 1997 and the new record of right was opened on 26.04.1997. Since there was no mutation of the record of right in terms of the amicable settlement, when the land was acquired a joint award was made according to the record of rights. Umesh Chandra Sarkar had full knowledge of the mutation of the record of rights based on the gift deed but did not raise any objection. Had there been any dispute about the exclusive title of the answering defendants of the land, Umesh Chandra Sarkar had the right to raise objection about the apportionment under Section 30 of the Land Acquisition Act. But no such reference was made and hence it is to be presumed that Umesh Chandra Sarkar claimed no right over the land transferred by Ramesh Chandra Sarkar. Hence, his legal heirs are estopped from making any claim by filing a civil suit. Moreover, the registered gift deed was executed on 05.08.1994 and the record of right was mutated on 26.04.1997, but till today there is no challenge against the said gift deed as executed by Ramesh Chandra Sarkar. Hence the defendants have contended that the plaintiffs cannot claim any right over the land as gifted by their father namely Ramesh Chandra Sarkar. Further, they have stated in their written statement that the plaintiffs have enforceable right in respect of 5 kanis 10 and ½ gandas of the land and that amount of land was received as their share in the amicable partition by their predecessor. 8. Further, they have stated in their written statement that the plaintiffs have enforceable right in respect of 5 kanis 10 and ½ gandas of the land and that amount of land was received as their share in the amicable partition by their predecessor. 8. Further, the defendants No.1, 2 and 6 by filing a special application raised preliminary objection that their suit is not maintainable and the same is hit by limitation. After the amendment was carried out, one additional written statement was filed by the defendants No.1, 2 and 6. They had reiterated their stand and disputed the claim of the plaintiffs. The trial court on the basis of the pleadings framed the following issues: (i) Whether the suit is maintainable in law? (ii) Whether the suit land along with others land were the joint property of Late Ramesh Chandra Sarkar and Late Umesh Chandra Sarkar in equal share? (iii) Whether after the death of Ramesh Chandra Sarkar and Umesh Chandra Sarkar the plaintiffs and defendants have inherited the said property equally? (iv) Whether the suit land and other land were portioned between the plaintiffs and defendants by metes and bounds? (v) Whether Late Ramesh Chandra Sarkar gifted land measuring 1.20 acres to the defendants No.1, 2 and 6 by three separate Gift Deeds from the joint property of Late Ramesh Chandra Sarkar and Late Umesh Chandra Sarkar? (vi) Whether Ramesh Chandra Sarkar and Umesh Chandra Sarkar are the joint owners of land measuring 4.42 acres under khatian No.807/1 to 807/7? (vii) Whether the plaintiffs are entitled to get 1/2 of land measuring 4.42 acres as Successors of Late Umesh Chandra Sarkar? (viii) Whether the remaining 1/2 of land measuring 4.42 acres of the defendants’ shares includes the land of 1.20 acres of the Deed of Gift? (ix) Whether the defendants No.1 and 2 and the pro-defendant No.6 have received compensation for acquisition of land excluding their share, i.e. compensation for land measuring 0.60 acre is excess, i.e. Rs.4,83,422.50 ? (x) Whether the defendants No.1, 2 and pro-defendant No.6 are jointly or severally liable to refund the 1/2 share of the L.A. Proceedings No.5/SDR/02 at Sl. No.65 i.e. an amount of Rs.4,83,422.50 to the plaintiffs? (xi) Whether the Khatian No.1277 has been created without any legal basis? (xii) Whether the plaintiffs are entitled to the reliefs as prayed for? 9. (x) Whether the defendants No.1, 2 and pro-defendant No.6 are jointly or severally liable to refund the 1/2 share of the L.A. Proceedings No.5/SDR/02 at Sl. No.65 i.e. an amount of Rs.4,83,422.50 to the plaintiffs? (xi) Whether the Khatian No.1277 has been created without any legal basis? (xii) Whether the plaintiffs are entitled to the reliefs as prayed for? 9. After the amendment, the following additional issues were framed: (1) Whether Ramesh Chandra Sarkar, the predecessor of the defendants had sold land measuring 0.73 acres by registered Sale Deed dated 05-08-1994 to Smt. Laxmi Dhanuk from the joint property under Khatian No.807/1 and 807/2. (2) Whether plaintiffs are entitled to get 50% of Rs.3,06,724/- which has been awarded for land measuring 0.73 acres of joint property under khatian no.807/1 and 807/2 sold by Ramesh Chandra Sarkar, the predecessor of the defendants from the joint property. 10. The trial court after giving the opportunity to adduce the evidence to the parties had determined the suit by holding that none of the parties could adduce any reliable evidence to show that the joint landed property of late Ramesh Chandra Sarkar and late Umesh Chandra Sarkar were portioned between the plaintiffs and the defendants by metes and bounds. Further, it has been observed that the plaintiffs neither preferred any reference under Section 30 of L.A. Act nor challenged the registered gift deed and the sale deed executed by the predecessor of the defendants namely Ramesh Chandra Sarkar. Until and unless those deeds are not declared by any court of law as illegal, there is no scope to decide the entitlement of the plaintiffs in the joint land measuring 4.42 acres as the successors of late Umesh Chandra Sarkar. Accordingly, the issues relating to that aspect of the matter were decided against the plaintiffs. Even the plaintiffs did not challenge the registered sale-deed at any point of time and thus the trial court has observed that there is no scope to decide the additional issue no.2 in favour of the plaintiffs. 11. The cumulative result was that the suit was dismissed without cost by the judgment dated 12.12.2013. The appellants being aggrieved filed an appeal under Section 96 of the CPC from the said judgment in the court of the District Judge, West Tripura, Agartala being Title Appeal No.06/2014. By the impugned judgment dated 13.07.2015, the said appeal was dismissed. 12. 11. The cumulative result was that the suit was dismissed without cost by the judgment dated 12.12.2013. The appellants being aggrieved filed an appeal under Section 96 of the CPC from the said judgment in the court of the District Judge, West Tripura, Agartala being Title Appeal No.06/2014. By the impugned judgment dated 13.07.2015, the said appeal was dismissed. 12. Having re-appreciated the evidence and observing closely the recital of the gift deed and the sale-deed it surfaces that the joint property was partitioned amongst the said two brothers amicably and the respective share was demarcated and Ramesh Chandra Sarkar got his share and only thereafter he had executed the gift deed. 13. Having referred to Section-44 of the Transfer of Property Act, where it has been provided that where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires right as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same, but subject to the conditions and liabilities on the date of transfer, the share or interest so transferred and that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in that section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house, this court is of the view that the defendants No.1, 2 and 6 and Laxmi Dhanuk who was not even made party in the suit even though the amendment was carried out did not ask for any partition of their respective share in the joint property. But they got their name recorded in the new khatian by way of mutation. The first appellate court thereafter succinctly observed that what follows from the series of acts that the transfer through the gift deed and the sale deed were made after the joint property was partitioned for which it was not necessary for the transferees [the defendants No.1, 2 and 6 and Laxmi Dhanuk] to seek partition. The first appellate court thereafter succinctly observed that what follows from the series of acts that the transfer through the gift deed and the sale deed were made after the joint property was partitioned for which it was not necessary for the transferees [the defendants No.1, 2 and 6 and Laxmi Dhanuk] to seek partition. What is important to note is that unless the property was partitioned and the shares of the transferees are demarcated according to the respective instrument, the Khatians would not have been created. It is an admitted position that the transfer instruments are not under challenge in the suit. Therefore, according to the first appellate court the judgment of the trial court did not suffer from any infirmity or illegality. Accordingly it has been affirmed. This finding has been challenged in the present appeal. 14. At the time of admitting this appeal, the following substantial questions of law were framed for hearing of this appeal by the order dated 05.04.2016: (1) Whether the finding as to the partition of the property emanates from correct reading of the documents or not? and (2) Whether in absence of evidence as to the partition, the sale with definite boundaries would take away the right of the co-sharer to have the equitable partition of right? 15. Mr. K.N. Bhattacharjee, learned senior counsel appearing for the appellants has strenuously argued that the concurrent finding as returned by the first appellate court is absolutely incorrect. There was no partition of the joint property and hence Ramesh Chandra Sarkar did not have the competence to execute either the gift deed or the sale deed. The recital in the instrument of transfer is a mere reference, unless the partition was really carried out, this recital cannot have any role. Thus the observation as made by the first appellate court is absolutely in contravention of the settled legal position. 16. Mr. Bhattacharjee, learned senior counsel has further submitted that when the land was under possession of the Indian Army how the possession can be handed over or the delivery of possession can be made in terms of the gift deed or the sale deed. According to Mr. Bhattacharjee, learned senior counsel the total land measuring 4.42 acre recorded in the Khatian No.807/2 and 807/7 remained un-partitioned. According to Mr. Bhattacharjee, learned senior counsel the total land measuring 4.42 acre recorded in the Khatian No.807/2 and 807/7 remained un-partitioned. He has further asserted that even if a reference under Section 30 of the LA Act had not been pressed, that itself will not take away the right of the plaintiffs over the share of the entire land. When this court had asked Mr. Bhattacharjee, learned senior counsel to explain what consequence would follow if the said instrument of transfers are not challenged in the suit. Mr. Bhattacharjee, learned senior counsel did not address the question directly but he has suggested that had the instruments not been challenged, the consequence that would follow is that the land as transferred by those instruments shall be adjusted from the share of Ramesh Chandra Sarkar. The boundaries as described in their instrument will have no effect. According to Mr. Bhattacharjee, learned senior counsel that Section-44 of the Transfer of Properties Act shall come into effect to save those transactions. That land as delineated by specific boundaries shall be converted into the share of the transferees subject to the partition of the joint property. The transferees had their right to seek the partition. However, they did not seek any partition so far. But the reason is obvious. 17. From the other side, Mr. D.K. Biswas, learned counsel appearing for the respondents have submitted that unless the instruments of transfer are challenged, the submission as made by Mr. Bhattacharjee, learned senior counsel cannot be entertained. Moreover, one of the transferees namely Laxmi Dhanuk has not been made party in the proceeding. According to Mr. Biswas, learned counsel that the Land Acquisition Collector during inquiry has examined the title and accordingly apportioned the award. That award was never questioned but has been challenged much later on accepting the share. In this regard, Mr. D.K. Biswas, learned counsel has referred a decision of the apex court in Adiveppa and Others vs. Bimappa and Another reported in (2017) 9 SCC 586 , where the apex court had occasion to observe as under: “It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court.” It has been further observed in Adiveppa (supra) that it is a settled principle of law that the initial burden is always on the plaintiff to prove his case by proper pleading and adequate evidence (oral and documentary) in support thereof. 18. In sequel, Mr. Biswas, learned counsel has referred a decision of the Patna High Court in Sita Ram Prasad vs. Mahadeo Rai and Others reported in AIR 1980 PATNA 254. Patna High Court in Sita Ram Prasad (supra) has observed having reference to one of its Full Bench decision in Suraj Prasad v. Mst. Aguta Devi, ( AIR 1959 Pat 153 ) that the legal possession of the mortgaged properties thus having been clearly understood there cannot be any manner of doubt that the parties were competent in law to deal with the ‘bharna’ lands at the time of oral partition like any other joint family property and the allotment of the said land to the share of any of the coparceners lawfully made, the allottee entitled to redeem the mortgage as a whole and thereafter to become the absolute owner of the said property. The equity of redemption or for that matter the right to redeem, is capable of being assigned or transferred, cannot be disputed in law. Rather, the defendant himself is the purchaser of the same right. The plaintiffs, case having acquired the said right under the deed of sale (Ext. 8) had been held to be entitled to the decree for redemption. 19. On placing his reliance on that decision, Mr. Biswas, learned counsel has submitted that the land was under the possession of the Indian Army but the transfer cannot be held illegal for that purpose. It has to be constructed as the constructive possession. Mr. Biswas, learned counsel has thus asserted that delivery of possession is constructive in nature but when the Indian Army vacated the land, a part of it was acquired. Thus, the possession was physically restored to the transferees. Mr. It has to be constructed as the constructive possession. Mr. Biswas, learned counsel has thus asserted that delivery of possession is constructive in nature but when the Indian Army vacated the land, a part of it was acquired. Thus, the possession was physically restored to the transferees. Mr. Biswas, learned counsel has further submitted that the second appeal is bereft of merit and so it should be dismissed without further consideration. 20. Having appreciated the rival contentions as noted above, this court finds two fundamental questions emerged for decision: (i) When the trial court has observed that there is no proof of partition, can it be stated that there was a partition between the two brothers and whether the inference that Ramesh Chandra Sarkar had the exclusive right to transfer land from his part is sustainable and; (ii) Whether without challenge to the instrument of transfer, a civil court can declare the right under Section 44 of the Transfer of Property Act? 21. According to this court the finding relating to the partition is not concurrent. The trial court has observed that there was no evidence before it enabling to return the finding of the partition of joint property of two brothers, but on the basis of the unchallenged instrument of transfer, the first appellant court had observed that the incidence of partition has been recorded in those instruments of transfer and such recital cannot be segregated to brush aside the fact of partition, when there is no challenge against the legality of those instruments and hence this recital can rightly be treated as the valid partition. 22. Having read those instruments, this court finds that the finding relating to the recital in the instrument of transfer is entirely correct and no challenge has been carried out by the plaintiffs against those instrument of transfer and as such the civil court cannot decided contrary to what has been recited in the instruments of transfer when those instruments of transfer are registered and not under challenge by the plaintiffs. Hence the finding of the trial court that there is no evidence of transfer has been modified by the first appellate court by returning the finding that the partition has been recorded in the instrument of transfers which are not under challenge. This finding cannot be questioned in the circumstances of the case, unless those instruments were challenged. Hence the finding of the trial court that there is no evidence of transfer has been modified by the first appellate court by returning the finding that the partition has been recorded in the instrument of transfers which are not under challenge. This finding cannot be questioned in the circumstances of the case, unless those instruments were challenged. No contrary finding in the circumstances as noted can be returned by any civil court. Further, this court is of the view that unless the instrument of transfer in respect of the joint property is challenged the provisions of Section-44 of the Transfer of Property Act cannot be applied. It should be further noted that unless the transferees are made party in the suit, the civil court does not have the jurisdiction to decide about their property right in absentia and hence this court is of the view that there is no perversity as adverted in the finding of the first appellate court. It has further surfaced that the money for the acquired land has been apportioned according to their title. Thus, no different finding was probable. Moreover, the plaintiff has not made any alternative prayer showing that if the partition is assumed, they are entitled to more amount of money from the compensation against the acquisition. In absence of such pleading and evidence, this court cannot pass any decree directing more amount of money out of the compensation awarded for the acquisition, in favour of the plaintiffs. 23. The cumulative effect of the findings as returned above is that the appeal is bereft of substance and accordingly the same is dismissed. Draw the decree accordingly. Send down the records thereafter.