Calcutta High Court (Appellete Side)
Kalicharan Mondal & Ors vs Madhu Mondal & Ors on 14 December, 2022
Dl. December S.A.T. 53 of 2007
38. 14, 2022
Kalicharan Mondal & ors.
Vs,
Madhu Mondal & ors.
The matter appeared in the warning list on November
29, 2022 with a clear indication that the matter would be transferred
to the daily cause list on December 5, 2022 before the regular
bench. Since then the matter is appearing in the list. The present
appeal is of the year 2007.
Today the appellant is not represented, nor any
accommodation is prayed for.
It appears that the matter was initially appeared on
February 18, 2008 before a co-ordinate bench. Upon noticing that
the matter was defective, the co-ordinate bench directed the matter
to go out of the list. The office reports that the defects have not yet
been removed. Notwithstanding the defects, we propose to consider
the question of admission of the present second appeal on the basis
of the materials available on record.
The judgment and decree of affirmance dated May 16,
2006 passed by the learned Additional District Judge, Fast Track
Court No. II at Jangipur, Murshidabad, in Title Appeal No. 35 of
2003 arising out of judgment and decree dated April 29, 2003
passed by the learned Civil Judge (Junior Division), First Court at
Jangipur, Murshidabad, in Title Suit No. 77 of 2001, which is a suit
for declaration of right, title and interest and permanent injunction,
is the subject matter of challenge in this appeal.
The plaintiffs/appellants filed the present suit for
2
declaration of right, title and interest and permanent injunction in
respect of the suit property against the defendants/respondents. The
defendants/respondents no. 1, 2 and 3 contested the suit by filing
written statement. The learned trial judge framed six issues and,
upon considering the evidence adduced by the parties, dismissed the
suit.
According to the plaintiffs/appellants, the suit plots no.
404 and 405 originally belonged to Madhav @ Jhalu having 25%
share, Balram Mondal having 25% share and Panchanan Mondal
having 50% share.
It was argued before the trial court as well as the first
appellate court that Panchanan Mondal got 16 annas share in plot
no. 404 and Jhalu and Balaram got 16 annas share in respect of plot
no. 405 on the strength of an amicable settlement. It was further
argued that Panchanan transferred plot no. 404 to Brajalal Mondal
and Gadadhar Mondal against whom Madhav Mondal filed a
preemption case being Misc. Case No. 33 of 1945 under Section
26F of the B.T. Act in which Madhav Mondal got an order of
preemption. It appears that Brajalal and Gadadhar preferred an
appeal against the said order. The said appeal was dismissed.
It was the contention of the appellants before the first
appellate court that Brajalal, the father of the defendant/respondent
no. 1, tried to dispossess Madhav from a portion of plot no. 404 for
which Madhav filed a suit being Title Suit No. 101 of 1954 and got
a decree. It was urged that Balaram died leaving behind Madhav
Mondal as his only heir and that after the death of Madhav, the
plaintiffs/appellants became the owners in respect of plots no. 404
and 405. It was contended that the contesting
defendants/respondents had claimed 8 annas share in the suit plots
on the strength of an alleged deed and that the revisional settlement
and land revenue records of right in respect of the suit properties
had been prepared erroneously and there was no existence of
Chaitanya Mondal son of Balaram Mondal. It was further contended
that the trial court has wrongly decided that Kamini Mondal is a
necessary party. It was argued that Madhav Mondal acquired the
title over plot no. 404 on the strength of the order passed in Misc.
Case No. 33 of 1945.
The defendants/respondents no. 1, 2 and 3 in their
written statement as well as during their arguments contended that
the suit plots no. 404 and 405 were originally belonged to Madhav
Mondal and Balaram Mondal having 50% share in total and
Panchanan Mondal had 50% share in the suit plots. It was further
submitted that Jhalu @ Madhav Mondal was the karta of the family
and that Balaram Mondal gave 50% of the consideration money to
Jhalu Mondal at the time of filing the preemption case against
Brajalal and Gadadhar. It is also submitted that Balaram died
leaving behind him his wife Dharani, one son named Chaitanya and
one daughter named Sundari. It is submitted that after death of
Chaitanya and Dharani, Sundari acquired 50% share in the suit
property and after her death her heirs acquired right, title and
interest in respect of 50% share in the suit property. It was
contended that the heirs of Sundari transferred their interest in
favour of Baidyanath Mondal and Atulya Prasad Mondal and that
the suit property was recorded in the names of Chaitanya Mondal
and Madhav Mondal in moiety share in the revisional settlement
records of righjt in khatian no. 265 of Mouza Enayat Nagar. It was
urged that the name of Sundari was recorded in the land revenue
records of right and the heirs of Sundari transferred 50% share in
the suit property to Baidyanath Mondal and Atulya Prasad Mondal
by executing a deed of sale in the year 1999.
The plaintiffs' witness no. 1 stated in his cross
examination that Balaram had two daughters, namely, Sundari and
Kamini and that Sundari had five issues. It was also stated that his
aunt, Dharani Mondal, resides with her son and daughters in a
separate mess.
It was argued on behalf of the defendants/respondents
no. 1, 2 and 3 that the plaintiffs/appellants have failed to
substantiate that there was no existence of Chaitanya Mondal, son
of Balaram Mondal and that the revisional settlement records of
right were prepared erronesouly. The plaintiffs/appellants have
failed to give any reason as to why Jhalu @ Madhav did not take
any step for correction of the revisional settlement records of right.
It was argued that Kamini Mondal filed a suit for partition in respect
of some properties including the suit peoperty against the
plaintiffs/appellants and others in the court of the learned Civil
Judge (Senior Division) at Jangipur, for which Kamini is a
necessary party.
The trial court as well as the first appellate court have
scrutinized exhibits A, A/1, B and the certified copy of the
judgment of Misc. Appeal No. 92 of 1995 (exhibit 2) and on
appreciation of oral and documentary evidence had arrived at a
finding that Chaitanya Mondal was the son of Balaram Mondal for
which Madhav and/or his heirs did not file any objection against the
recording of revisional settlement record of rights in the name of
Chaitanya Mondal in respect of the suit property. Kamini Mondal in
her evidence stated that Jhalu @ Madhav Mondal was her father.
The case relates to plots no. 404 and 405 of moza Enayat Nagar.
The evidence of plaintiffs' witness no. 1 also shows that Kalicharan
Mondal admits existence of a son of Balaram Mondal. The basis of
the recording of the suit property in the revisional settlement record
of right, which was prepared in four stages, namely, K.B.,
attestation, draft publication and final publication, cannot dislodge
the claim of Chaitanya in respect of the suit property. The first
appellate court has meticulously discussed the procedure of
preparation of record of rights in the following words :-
"At the stage of K.B., record was prepared at the spot
and in presence of local persons. It is very difficult to
believe that settlement officials recorded the names of
Chaitanya Mondal, Jhalu @ Madhav Mondal in
R.S.R.O.R. in 4 stages wrongly in the name of
Chaitanya Mondal in respect of non-existence of
Chaitanya Mondal in the world. It is also very difficult
to believe that Madhav @ Jhalu or his heirs allowed the
settlement officials to record the name of a fictitious
person in respect of the suit property and did not file
any objection against the wrong recording of
R.S.R.O.R."
Under such circumstances, we do not find any
substantial question of law involved in this appeal for which the
same is required to be admitted.
The second appeal is, therefore, summarily dismissed
under Order XLI Rule 11 of the Code of Civil Procedure.
There will be no order as to costs.
dns ( Uday Kumar, J. ) ( Soumen Sen, J. )
