Sri Shyam Sundar Dhara & Anr vs Sri Sudarshan Dhara & Ors
2021 Latest Caselaw 5254 Cal

 30.09.2021
 31
suman
Ct.09
                                  SAT 94 of 2020
                                     With
                                 CAN 1 of 2021


                      Sri Shyam Sundar Dhara & Anr.
                                   Vs.
                        Sri Sudarshan Dhara & Ors.



              Mr. Sovan Mukherjee
                         ...for the appellants




                    The instant second appeal has been filed

              against the judgment of the First Appellate Court

              affirming the judgment of the trial Court.             The

              plaintiffs/respondents filed the suit for declaration

of title on the strength of the deed of partition

executed way back 1986 and mandatory

injunction for removal of the structure constructed

on the encroached portion of the land owned by

the plaintiffs /respondents and recovery of

possession.

The facts appearing from the record are

more or less undisputed. The entire property

comprising of 9 satak of land was initially owned

by four brothers. The plaintiffs/respondents are

the descendents of one of the brothers namely

Dulal whereas the defendants/appellants are the

heirs and legal representatives of another brother

namely Narayan. One of the brothers, Mihir died

before the alleged deed of partition was executed

and the widow of the said deceased executed a

deed of gift in the year 1971 in favour of all the

plaintiff/respondents. Upon the death of the

predecessor of the defendants/appellants, the

dispute was resolved by the intervention of the

friends and relatives and the deed of partition was

executed and registered before the concerned

registrar in the year 1986 in which the mother of

the defendants/appellants was the signatory

thereto. She executed the said document as

natural guardian of the defendants/appellants who

claimed to be minor at such relevant point of

time. Nothing transpires from the pleading that

there was any challenge to the dispute pertaining

to the execution and registration of the deed of

gift except when the plaintiffs/respondents

instituted the instant suit and claimed title on the

basis thereof, the defendants/appellants disputed

the veracity, authenticity and the legality of the

partition deed, on simple counts namely the

mother as a natural guardian was incompetent to

sign and execute the said document when the

defendants/appellants were minor. It is further

contended that all the co-sharers were not made

a party thereto and lastly the mother being an

illiterate lady was not aware of the contents

thereof as there is no certification to the effect

that the contents have been read over and

explained to her in a language understandable to

her.

The defendants/appellants lost on all counts

and the suit of the plaintiffs/respondents was

decreed. The Appellate Court in our opinion has

spent more time in reiterating the principles of

approbate and reprobate than making any

observations on the merit of the case. At the first

blush, we thought to interfere with the impugned

order but after perusing the judgment of the trial

Court which elaborately and extensively

considered and touched all the issues raised

before it, we find that the ultimate conclusion of

the Appellate Court cannot be faulted with.

However, we must record the role and the

duties of the Appellate Court in deciding an appeal

under Section 96 of the Code of Civil Procedure.

The First Appellate Court is the last Court of fact

and law and, therefore, it is a primary duty cast

upon them to decide all the issues and return its

independent finding thereupon. When we use the

expression "last court of fact and law" we are

conscious of the proposition of law that the second

appeal is restricted to a substantial question of

law and not every question of law involved in the

matter. The First Appellate Court must decide the

matter independently and the issues of fact and

the law must be discussed in extenso and the

argument advanced by the respective parties

should be addressed lucidly, explicitly and with

clarity. Mere reiteration of the principles of law

without venturing to decide the facts of the case

by the Court of First Appeal is an attempt to shirk

the responsibilities entrusted upon it by the

statute. The right to appeal under Section 96 of

the Code of Civil Procedure is not brindled with

any conditions as may be seen under Section 100

of the Code. It is, thus, axiomatic to say that the

First Appellate Court must examine, scan and

return its independent finding on all the issues

raised in the suit as well as in the said appeal and

should not adopt slip shod manner by

recapitulating the abstract principle of law even

without indicating whether such proposition of law

has any manner of application in the case.

Be that as it may we invited the learned

advocate for the appellant to address us on the

facts of the case for the purpose of ascertaining

the involvement of the substantial question of law

under Section 100 of the Code of Civil Procedure.

The learned advocate for the appellant

submits that the deed of partition is bad,

inoperative, ineffective and void, as all the co-

sharers were not made parties. It is further

submitted that there has been a clear admission

on the part of the first witness of the plaintiffs that

the defendants/appellants were minor at the time

of execution and registration of the partition deed

which itself make the deed void and inoperative.

It is thus submitted that the suit is barred under

the Limitation Act having not filed within three

years from the date of the accrual of cause of

action. Lastly, it is submitted that there is no

finding that the defendants/appellants have, in

fact, encroached upon the land of the plaintiffs

/respondents which should be evident from the

recital of the partition deed that each party would

respect their allocated portion and will continue to

enjoy by raising construction thereupon.

At the very outset we must say that the

aforesaid pleas were taken before the trial Court

and discussed extensively on the basis of the

evidence adduced by the parties and the

documents exhibited therein. So far as the

invalidation of the partition deed on account of

non-implementation of all the co-sharers are

concerned we do not find any substance therein.

It is discernable from the record that the widow of

the one of the brothers, Mihir executed the deed

of gift before birth of the partition deed divesting

all her share which Mihir had in favour of the

plaintiffs. Even though it is considered that the

children of Mihir were not made a party yet the

defendants/appellants cannot impinge the said

deed as they felt not to be affected by such deed.

The position would have been different had the

children of Mihir challenged the said deed saying

that their share could not have been divested by

the mother. Such position has not arrived and,

therefore, we do not find such contention to be

legally sustainable.

Further more, the defendants/ appellants

were minor at the time of execution of the

partition deed. It is undisputed that the mother of

the defendant/appellants as a natural guardian

executed and signed the said document and one

can reasonably infer that the same was duly acted

upon. Though infirmity is sought to be projected

as a defence but the defendants/appellants never

challenged the said partition deed on the authority

of the mother as a natural guardian to be one of

the executant thereto even after attaining the

majority. Law is somewhat settled that if the

natural guardian has vested right, title and

interest in respect of an immovable property

belonging to the minor, the option is left the

minor either to waive right to challenge such

action or challenge such action within three years

from the date of attainment of majority. The

record would reveal that though the defence has

been taken in the written statement, the counter

claim was not filed nor the said partition deed was

challenged by an independent suit. The Court has

further held that it is too late to declare the deed

void to which we do not find any fault in it. Even

the mother during her lifetime never challenged

the deed on the ground that contents thereof was

not read over and explained to her. The plea of

illiteracy has been taken but there is no cogent

material forthcoming which may justify such a

stand; even apart, if the executant of the

document has acted upon the same the question

of certification becomes academic and cannot be

treated as fatal so as to invalidate the deed in its

entirety. The concept of such certification

originated in medieval period when the women

were not aware of the worldly affairs and able to

protect her interest in the immovable property.

This aforesaid proposition of law in a modern

society is required to be considered in such

perspective and the same has to be applied in the

context of given facts and not simplicitor on the

plea that she was illiterate. Our endeavour has

failed to find out any such findings in the

judgment delivered by the trial Court that she has

put her L.T.I. but the fact which transpires

therefrom that she has put her signature on the

said deed. We do not think that merely because a

contention is raised that she was illiterate in

absence of any further corroboration before the

Court, such plea cannot be taken.

The partition deed revealed the portion

allotted to the plaintiffs/respondents which has

been clearly described in the schedule appended

thereto. It is a specific case of the

plaintiffs/respondents that the

defendants/appellants have encroached a portion

thereof by making a construction and have ousted

them from such possession. An Investigating

Commissioner was appointed by the trial Court

who after relay and survey of the property

submitted a report indicating that the allotted

portion has been encroached upon by the

defendants/appellants by making construction.

The Commissioner was confronted with the report

in the cross-examination made by the

defendants/appellants but stood firm on his report

and the trial Court did not find any lacuna or

defect in such report. Once the Court finds that

there is an encroachment over the property

belonging to other, there is no fetter on the part

of the Court in accepting the said report obviously

in conjunction with other circumstances and the

materials surfaced in course of a trial.

In view of the findings made hereinabove

we do not find any substantial question of law

involved in the instant appeal. The appeal is

dismissed. No costs.

(Harish Tandon, J.)

(Bibek Chaudhuri, J.)