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2022 DIGILAW 1577 (CAL)

Sk. Liton v. Sk. Jomrul Islam

2022-12-16

PARTHA SARATHI CHATTERJEE, TAPABRATA CHAKRABORTY

body2022
JUDGMENT Partha Sarathi Chatterjee, J. - Judgment and decree passed in preliminary form on 27th July, 2016 by the learned Civil Judge, Senior Division, Malda in Partition Suit no. 281 of 2008 have been impugned in this instant appeal. By the said judgment and decree the learned Court below declared that the 'plaintiffs have jointly 4.80 decimals of land and the defendant nos. 1 and 2 jointly 5.2 decimals of land in the suit schedule property' and ordered to effect partition of the suit property in terms of the share declared. 2. Factual conspectus giving rise to this appeal is that plaintiffs/respondents herein filed one suit for partition and separate possession of the suit property before the learned court below stating inter alia that one Jhumuklal Mondal and Thakru Mondal owned and possessed the property, mentioned in schedule 'Ka' appended to the plaint, in equal share and their names were duly mutated in R.S. R-O-R. Jhumuklal died leaving behind two sons namely, Raju Mondal and Dhiren Mondal and Thakru Mondal died leaving behind only one son, namely, Gopi Mondal who sold out the suit property to Santi Chironia, defendant no. 1/ proforma-respondent no.3 herein (hereinafter referred to as Santi) by virtue of one deed vide. no. 2325 on 01.05.1958. Santi thereafter sold out 4- dec. of specifically demarcated land mentioned as 'Kha' schedule property appended to the plaint, from the 'Ka' schedule property to Chance Housing and Industrial Finance Company Limited (hereinafter referred to as Chance Housing) represented by its Managing Director, M.A. Malik on 18.11.2012 by 10 (ten) numbers of deed vide. nos. 11023 to 11032 and thereafter Chance Housing sold out 'Kha' schedule property to the plaintiffs by virtue of one deed vide. no. 5294 on 29.8.2008. Santi also transferred some portion of land from 'Ka' Schedule property to the defendant no. 2 and it was claimed that the defendant nos. 3 to 12 therein have no right, title and interest in 'Ka' and 'Kha' schedule properties and even Santi has no right in 'Kha' schedule property. It was also contended that the defendant nos. 3 to 12 in connivance with Shanti had been disturbing the peaceful possession of the plaintiffs and threatening to evict them from 'Kha' schedule property and hence, the plaintiffs filed the suit seeking decree of declaration, permanent injunction and partition. 3. Record reveals that defendant nos. It was also contended that the defendant nos. 3 to 12 in connivance with Shanti had been disturbing the peaceful possession of the plaintiffs and threatening to evict them from 'Kha' schedule property and hence, the plaintiffs filed the suit seeking decree of declaration, permanent injunction and partition. 3. Record reveals that defendant nos. 1, 6, 7 and 8 and the defendant nos. 3, 4, 5, 10 and 12 resisted the suit by filing two separate written statements. In both the written statements, the contesting defendants in the same tune specifically contended that actual area of 'Ka' schedule property was 10 dec. not 32 dec. as was claimed in the plaint and Shanti sold out 4- dec. of land (out of 10 dec.) to Chance Housing, a company conducting banking business in different places in Malda and collected money from different people on fixed terms. Chance Housing failed to return money to its customers and it shut down its offices and the company officials fled away and people who deposited money in Chance Housing and the defendants took possession of the Chance Housing company's land measuring 4- dec. ('Kha' schedule property). Subsequently the said company stood dissolved and that the plaintiffs' deed is forged and said deed has not been acted upon. 4. Record postulates that the learned Court below framed as many as 7(seven) issues and to substantiate their case, the plaintiffs adduced oral testimonies of one Sk. Jamrul Islam, Sk. Nausad Zaman, Sk. Safikul who were examined as PW-1, PW-2 and PW-3 respectively and the plaintiffs tendered some documents, namely, certified copy of deed of sale no. 2325 dated 01.05.1958, ten deeds vide. nos. 11023 to 11032, original deed no. 5294 dated 29.08.2008 and R.S. R-O-R of Khatian no. 2016 which were marked as Ext.-1 to 13 respectively. 5. On the other hand, to resist the suit, the defendants adduced oral accounts of Gullu Chironia and Suren Mondal, who were examined as DW-1 and DW-2 respectively and the defendant produced the C.S.R-O-R of Khatian no. 201, original deed no. 2325 dated 01.05.1958 and a letter dated 20.03.2009 along with its enclosures which were marked as Ext.-A to C respectively. 6. 201, original deed no. 2325 dated 01.05.1958 and a letter dated 20.03.2009 along with its enclosures which were marked as Ext.-A to C respectively. 6. The judgment and the decree has been challenged on the grounds, inter alia, that the learned Court below ignored the facts that the vendor of the plaintiffs had purchased the land in the name of one company which had been admittedly dissolved, before execution of deed, by the Registrar of Companies and hence, the plaintiffs did not acquire any title over the said property and the learned Court erred in shifting the burden upon the defendants to prove that the companies, namely, Chance Housing and Industrial Financial Company and Chance Savings Company Limited are different. 7. Mr. Dhole learned advocate appearing for the appellants submits that Chance Housing was dissolved and had been struck off from the register of companies and hence, the deed of sale executed by Chance Housing did not pass any title in favour of the plaintiffs and that the owner of Chance Housing and Chance Savings Company Limited is the same. Drawing our attention to the cross-examination of PW- 1, he submits that PW-1 himself admitted that he had purchased the property from Chance Savings Company Limited and there was one Director of the company. 8. He further submits that since Chance Savings Company Limited did not pay the money of its customers, defendant nos. 3 to 12 have taken possession of the suit property. There had been no endeavour on the part of the plaintiffs to establish that the 'Kha' schedule property is a specifically demarcated portion of the 'Ka' schedule property. No steps were taken for local inspection. The learned Court delivered the impugned judgment being oblivious of such infirmities. 9. Per Contra, Mr. Ghosal learned advocate representing the plaintiffs/respondents argues that the primary issue involved in the appeal is as to whether the transfer of 4- dec. of land from the suit property by Chance Housing and Industrial Financial Company in favour of the plaintiffs was valid and as to whether name of Chance Housing and Industrial Financial Company was struck off from the register of companies. of land from the suit property by Chance Housing and Industrial Financial Company in favour of the plaintiffs was valid and as to whether name of Chance Housing and Industrial Financial Company was struck off from the register of companies. By drawing our attention to Ext.-C, a reply given by the Deputy Registrar of Companies to the application filed by one Haripada Mondal under Right to Information Act, 2005, he submits that the name of the company, which had been struck off from the register of companies is M/s. Chance Savings Company Limited and not Chance Housing and Industrial Financial Company. No evidence had been adduced by the defendants to establish that both the companies are the same. The deed on the rudiments of which title was acquired by the plaintiffs had not been challenged and he arduously submits that such documentary evidence shall exclude oral evidence. He asserts that there is no scope to interfere with the judgment and decree impugned and he prays for dismissal of the appeal. 10. No contra evidence has come up to negate the case of the plaintiffs that 'Ka' schedule property originally belonged to Jhumuklal and Thakru and after their demise, the 'Ka' schedule property devolved upon Raju, Dhiren and Gopi, who by virtue of one deed sold out the same to Shanti on 01.05.1958 and then by virtue of 10(ten) deeds, Shanti sold out 4- dec. of specified demarcated land described in 'Kha' schedule property to Chance Housing on 18.11.1992. By virtue of one registered deed of sale dated 28.08.2008 (Ext.-12), Chance Housing sold out 'Kha' schedule property to the plaintiffs. Defendants did not challenge the deed dated 28.08.2008 and no evidence has come up that on 28.08.2008, Chance Housing was not in existence or its name was struck off from the register of companies. 11. PW-1 while deposing stated that he had purchased the 'Kha' schedule property from Chance Savings Company Limited but Ext. 12 shall exclude such oral evidence. Cardinal rule of evidence and conjoint reading of Sections 91 and 92 of Indian Evidence Act say that when written document regarding dispositions of the property has been admitted in evidence, oral evidence regarding such dispositions shall be excluded. General and most inflexible rule is that in case of a written instrument, oral evidence is excluded either as a substitute for such instrument or to contradict or alter them. 12. General and most inflexible rule is that in case of a written instrument, oral evidence is excluded either as a substitute for such instrument or to contradict or alter them. 12. In the present case, deed of sale executed by Chance Housing in favour of the plaintiffs has been admitted in evidence and hence, such deed shall exclude the oral evidence of PW-1 to the effect that he purchased the property from Chance Savings Company Limited. 13. From Ext.-C, i.e., letter of Deputy Registrar of Companies, it is not evident that Chance Housing and Industrial Financial Company Limited has been dissolved or name of such company has been struck off from the register of the companies. Name of M/s. Chance Savings Company Limited has been struck off but no evidence has come up before the learned Court below to lead it to hold that M/s. Chance Housing and Industrial Financial Company Limited and M/s. Savings Company Limited are the same and the former is a juristic person and it is immaterial whether both were being directed by one person or different person or persons. 14. The plaintiffs have been able to prove their right, title and interest in respect of 'Kha' schedule property. 15. The alleged non refund of money by the Company to its customers cannot be a justification towards the possession of the appellants over the concerned land or any part thereof. 16. For the reasons discussed above, we have no qualm to hold that there is no scope to interfere with the judgment and decree impugned. 17. Consequently, the appeal be and the same is dismissed, however, without any order as to the costs. Judgment and decree impugned herein are affirmed. 18. Appellant shall be at liberty to take back the amount, if any, deposited as security in this Court. 19. Let a decree be drawn up, accordingly. 20. Let a copy of this order along with LCR be sent to the learned Court below forthwith. 21. Urgent Photostat copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.