Kashinath Das vs Banshori Mohan Mondal & Anr
2022 Latest Caselaw 8351 Cal

15.12.2022
  SL No.23
 Court No.8
    (gc)
                            SAT 2642 of 2007

                           Kashinath Das
                                Vs.
                    Banshori Mohan Mondal & Anr.



                    This matter appeared in the Warning List of 29th

              November, 2022 with a clear indication that this matter

              shall be transferred to the Regular Bench on 5th

              December, 2022. Since then the matter is appearing in

              the list.   The second appeal is of the year 2007.    The

              appellant has due notice of the matter. The appellant is

              not represented.

                    The defects notified by the Additional Stamp

              Reporter in its report dated 4th February, 2008 have not

              been removed.      It appears that the appellant is not

              interested to proceed with the matter.      However, we

              proceed with the matter and have carefully read the

              judgments of both the Courts below along with the memo

              of appeal to find out if the second appeal involves any

              substantial question of law.

                    The appellate decree dated 10th August, 2007

              affirming the judgment and decree dated 2nd January,

              2004 passed by the learned Civil Judge (Junior Division)

              is the subject matter of challenge in this second appeal.

              Kashinath Das, filed the suit for declaration of title and

              permanent injunction.     According to the plaintiff, his

              grandmother, Smt. Swetbarani Dasi, was the original
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owner   of     the   suit   property.   During    her   lifetime,

Swetbarani transferred the suit property in favour of the

plaintiff and as the plaintiff was minor, his father,

Upendranath Das took possession of the suit property on

his behalf and he used to look after the said property on

behalf of his son. After attaining the majority, the plaintiff

took possession of the suit property from his father and

thereafter started cultivating the suit property and after

some time he entrusted the defendant to look after the

cultivation.     The defendant taking advantage of such

innocence declared himself as the owner of the suit

property and also claimed that the father of the plaintiff

has sold the suit property in his favour.         The plaintiff

contended that neither the defendant nor his father had

or has any right, title and interest over the suit property

and any deed purported to have been executed by his

father is not binding and is fabricated.         The defendant

No.1 contested the suit in which he has disclosed the

various deeds by which he became the owner of the

property.      It was stated that after Kashinath attained

majority, the suit property was sold in favour of the

defendant and since then the defendant is in occupation

of the property in question. The defendant No.2 has also

filed an affidavit, in which he has stated about the

subsequent transfer in his favour by the defendant No.1

on 3rd July, 1991. The Trial Court framed 12 issues. The

suit was dismissed on the ground of vagueness of the suit

property. The plaintiff failed to identify the property over
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which he claimed ownership.               On the question of

limitation, the learned Trial Judge held that at the time of

institution of the suit, the plaintiff was 39 years' old and it

was filed long after he became major. The suit is barred

under Section 16(a) of the Limitation Act, 1963.

      The suit was also held to be barred under Section

34 of the Specific Relief Act as the plaintiff was admittedly

out of possession and he did not claim for restoration of

possession.      The appellant/plaintiff preferred an appeal

before the First Appellate Court.         The respondents have

also filed a cross-objection with regard to the findings of

the Trial Court in respect of Issue Nos.7, 8 and 10. The

said issues are reproduced below:-

"7. Is the defendant by purchase of suit property?

8. Is the defendant by adverse possession acquire title for more than 12 years?

10. Has the plaintiff any right, title and possession over the suit properties?"

The learned Trial Court in answering to the issue

No.8 had held that since neither the parties have pressed

this issue, so the issue needs to be decided in favour of

the plaintiff. Insofar as the issue Nos.7 and 10 are

concerned, the learned Trial Court held that since the

father of the plaintiff did not take permission of the

learned District Judge before such transfer who is not a

valid transfer and the plaintiff has right, title and interest

in respect of the suit properties, the respondents before

the First Appellate Court has urged that the said findings

are suffering from self-contradiction and the learned

Court below ought to have held that the transfer of the

suit property of the appellant by his father was for legal

necessity and the same was a valid transfer. The First

Appellate Court disposed of the appeal and the cross-

objection by allowing the cross-objection and dismissing

the appeal on merits. In arriving at such finding, the First

Appellate Court had taken into consideration that

Upendranath purchased the said properties in the name

of his two minor sons on 20.07.1957 and thereafter on

14.11.1969 executed two registered sale deeds in favour of

the defendant No.1 on behalf of the minors and handed

over possession of the property in favour of the said

defendant No.1. The appellant, however, could not

identify the land over which he claimed ownership.

During cross-examination of the witnesses on behalf of

the plaintiffs, it was revealed that the defendant No.2 had

been possessing plot No.1403. However, the Appellate

Court principally proceeded on the basis of Article 60 of

the Limitation Act as it was quite clear from the evidence

that the plaintiff after attaining the majority within a

period of three years did not challenge the sale deeds after

they became aware of the possession of the defendants in

the suit property. Exhibit-C has clearly established that

the suit property was transferred for legal necessity when

the appellant was minor. However, under Section 8(3) of

the Guardian and Wards Act, any such transfer made by

the natural guardian, if a minor can be treated as a

voidable transfer and it can be set aside provided a

challenge is thrown to such deed within a period of three

years from the date of attaining the majority by the ward.

The appellant was admittedly aged about 39 years at the

time of institution of the suit. He could not offer any

explanation for such delay and could not produce any

evidence to show that he became aware of the sale deed

three years immediately before the filing of the suit. The

L.R.R.O.R., rent receipts and other evidence on record are

clear examples of possession by the respondents over the

suit property for a considerable period of time.

The concurrent findings of facts are based on cogent

evidence. We do not find any reason to admit the second

appeal as it does not involve any substantial question of law.

Accordingly, the second appeal stands dismissed at

the admission stage.

However, there shall be no order as to costs.

(Uday Kumar, J.)                          (Soumen Sen, J.)