Amar Pal & Ors vs Sg Samiran Ghosh & Ors
2022 Latest Caselaw 8402 Cal

SAT 358 of 2008 Item-19.

16-12-2022 Amar Pal & Ors.

                                                     Versus
  sg                                           Samiran Ghosh & Ors.
             Ct. 8

The matter appeared in the warning list on 29 th November,

2022 and thereafter transferred to the regular list on 5th December,

2022. There was a clear indication in the list that the matter shall

be transferred to the daily cause list on 5 th December, 2022 and

since then the appeal is appearing in the list.

The appellants are not represented nor any accommodation

is prayed for on behalf of the appellants. The appeal is of the year

2008.

It appears from the record that on 22 nd May, 2009, a

coordinate Bench noticing the defects directed the matter to go out

of list with liberty to mention after the defects are removed. But

no attempt has been made by the learned Advocate representing

the appellants to remove the defects. The appeal is pending since

2009 for admission.

The appellate decree dated 16th May, 2008 confirming the

judgment and decree dated 19th January, 2007 in a suit for

declaration of title and permanent injunction is the subject matter

of challenge in this second appeal.

Since the certified copy of the judgment and decree the Trial

Court are not on record, we proceed with the order passed by the

learned First Appellate Court and consider whether any substantial

question of law is involved upon taking into consideration the

memorandum of appeal.

Briefly stated; the plaintiffs/appellants on 22-04-96 filed this

suit praying for declaration of their title and permanent injunction

against the defendants on the grounds that the suit property

originally belonged to one Haradhan Pal, s/o Ramratan Pal and

that Ram Ratam Pal and Mathan Pal were two brothers who are

the legal heirs of Uday Pal. According to the plaintiffs Haradhan

Pal purchased the suit property by virtue of several deeds of

purchase from different persons and he expired in the year, 1977

leaving behind his only heir Mathan Pal who was the brother of

his father and while owning and possessing the suit property the

said Mathan Pal expired in the year, 1978 leaving behind his two

sons namely Nabani Pal @ Doman and Rampada Pal and two

daughters who inherited 1/4th share each in the suit property.

Between the said two daughters the elder Satubala Dasi a widow

died issueless and the 2nd daughter Kuturabala Dasi died leaving

behind one son Dosti Mondal and one daughter-Kuntala Mondal

who are plaintiff nos. 6 and 7 in this case. Between the two sons

Nabani Pal died leaving behind his tow sons Amar and Samar and

the 2nd son, Rampada Pal of Mathan Pal died leaving behind three

sons namely, Santi, Kanti and Mantri and all of them are plaintiff

nos. 1 to 5. According to the plaintiffs, plaintiff nos. 1 and 2 have

1/3rd share in the suit property while plaintiff nos. 3, 4 and 5 have

1/3rd share and plaintiff nos. 6 and 7 have 2/3rd share in the suit

property. According to them the defendants have no right, title and

interest over the suit property and on account of the connections

of defendant no.1 LR record has been wrongly recorded in her

favour. They further alleged that neither Haradhan Pal nor his

heirs sold any portion of the property to the defendants. Under

such circumstances, the plaintiffs filed this suit praying for the

relief as mentioned in the plaint.

The defendant no. 1 on 23-12-98 filed written statement

against the aforesaid plaint case wherein she alleged that the

plaintiffs have no right, title and interest in the suit property. The

plaintiffs being out of possession of the suit property the suit is

bad under section 34 of the Specific Relief Act. She accepted that

the suit property originally belonged to Haradhan Pal. But denied

that they inherited the suit property in the manner stated by them

in the plaint. Accordingly to her the LR record has been correctly

prepared. According to defendant no.1 she is owning and

possessing the suit property as the sole heirs of Haradhan Pal.

According to her Ramratan Pal had one son, Haradhan Pal and

one daughter Bhanumoti Pal. Bhanumoti Pal got married to one

Dhajadhari Mondal of Thobgram and after death of Ramratan Pal,

Haradhan Pal used to reside in the house of her sister, Bhanumoti

Pal and his sister and brother in law settled him in Thobgram and

during his staying in the said village he acquired the suit

properties. The defendant no.1 is the only daughter of said

Bhanumoti Mondal and after the death of Haradhan Pal she

(Saraswati) inherited the suit property according to Hindu

Successions act.

After the death of Swaraswati Pal her legal heirs namely,

Sonali Ghosh, Samiran Ghosh, and Niranjan Ghosh on 15-06-04

filed a written statement which is more or less similar to the

written statement filed by their mother. The other defendants

namely Sandhya Dom, Gasto Dom and Udoy Dom also filed a

written statement on 14-09-06 wherein they denied that the

plaintiffs have any right, title and interest over the suit land and

according to them Swaraswati Ghosh used to possess the

purchased property of Haradhan Pal and the plaintiffs never

possessed the properties of Haradhan Pal at any point of time.

According to them after the death of Haradhan, Swaraswati Ghosh

alone used to possess his property and used to pay Govt. rents and

the plaintiffs being greedy people are taking advantage of

innocent Swaraswati Ghosh and trying to grab the property.

The issue that came up for consideration before the Trial

Court as well as the Appellate Court as to whether Haradhan Pal

had any real sister by the name of Bhanumoti Pal, who died

leaving behind her only daughter Saraswati. This issue is

important as if the existence of such real sister is established, there

would be no question of inheritance of the suit property by the

plaintiffs as heirs of Mathan Pal. It is elementary that the

acquisition of title can be through testamentary, dispossession of

gift deed, purchase deed or by way of inheritance. The Trial Court

relying upon the decision of the coordinate Bench in Smt.

Katyabala Dasi Vs. Nilmoni Pakhira & Ors. Reported in AIR

1987, Calcutta 248, in which it was held that when the parties go

to the trial with full knowledge of each others case and had the

opportunities to establish their respective cases and in the absence

of any prejudice being caused to the parties, the case may not be

required to be remanded for determination of lis after framing of

the issue. The First Appellate Court proceeded to decide the

plaintiffs' right, title and interest in the suit property on the basis

of the evidence adduced by the parties with regard to such

relationship.

Before the First Appellate Court, it was argued that the

findings in the previously instituted suit between the parties are

relevant and the defendants ought to have raised such issue before

the Trial Court. The First Appellate Court had noticed that insofar

as the previously instituted suit is concerned, the second appeal is

pending and relying upon the decision of the Bombay High Court

in the case of Nanatukram Jaikar vs. Sonabai reported in AIR

1982, Bombay 437 in which it was held that there is no finality

attached to the decree as the second appeal is pending and,

therefore, there cannot be any question of res judicata. The First

Appellate Court proceeded to decide the matter on the basis of the

documentary and oral evidence.

The defendants in their pleadings specifically stated that

Bhanumoti Pal was the sister of Haradhan Pal and that Saraswati

Ghosh was her only daughter who inherited the suit property as an

heir. In the light of aforesaid specific pleadings of the defendants,

in view of the provisions of section 102 of the Evidence Act,

plaintiffs' case would fail if no evidenced at all were given on

either side as the sister of the deceased original owner of the suit

property ahs preferential right to inherit the suit property

belonging to Haradhan Pal compared to the plaintiffs who are

distant relatives of the deceased. Therefore, heavy onus lay upon

the plaintiffs to show who was defendant no.1, Saraswati Dasi as

impleaded by them in the suit in order to save their own right, title

and interest, if any, in the suit property. Had the deceased

Bhaumoti Pal not the sister of Haradhan Pal and the daughter of

Ramratan Pal, this fact could easily have been established by the

plaintiffs/appellants by showing that she is actually the daughter

of some other person and not that of Ramratan Pal as claimed by

the defendants. Unfortunately, the plaintiffs miserably failed to

perform their part of the duty as enjoined upon them under section

102 of the Evidence Act. On the contrary, the defendants have

produced all cogent and reliable evidence which includes direct

evidence of witnesses, documentary evidence and circumstantial

evidence to prove that Bhanumoti Pal was the sister of Haradhan

Pal and the daughter of Ramratan Pal and Saraswati Gthosh was

the daughter of said Bhanumoti Pal. Even PW-2 who deposed in

favour of the plaintiffs in his examination in chief stated:

"After the death of Haradhan this suit property was

possessed by one Saraswati Ghosh, W/o Nishakar

Ghosh"

This witness in his cross-examination admitted:

"I cannot tell the birth place of Haradhan nor I can

tell about the forefathers of Haradhan."

The learned Trial Judge relying upon the evidence of PW-2,

who admitted that Saraswati Ghosh called Haradhan as MAMA.

The evidence of DW-1, Samiran Ghosh, who has clearly stated

that "the suit property previsouly belonged to one Haradhan Pal

which he acquired by way of purchase. Haradhan Pal hails from

Barulgram under PS Jamuria, Dist-Burdwan. His father's name

was Ramratan Pal. Ramratan Pal was the s/o Udoy Pal. Ramratan

Pal had no full brother. He had one son and one daughter namely,

Haradhan Pal and Bhanumoti Pal respectively."

The First Appellate Court disbelieved the case of the

plaintiffs with regard to such relationship as claimed by the

plaintiffs in a suit. Moreover, DW-2, Dhiren Ghosh, who is the

brother's son of the deceased Dhajadhari Ghosh with whom

Bhanumoti was married. In his evidence he clearly staged that he

had seen Dhajadhari living in a joint family and Bhanumoti had

only one brother namely, Haradhan Pal (full brother). This was

supported by Bisnupada @ Madhu Ghosh being the DW-3, one of

the recorded bargadar who deposed as follows:

"I have been cultivating the suit property since the time fo

Haradhan Pal. Haradhan Pal had his original house in Barul

village within the district of Burdwan. Haradhan had only one

sister namely, Bhanumoti. Ramratan Pal was their father. After the

death of Ramratan, Haradhan Pal used to reside in the house of his

sister, Bhanumoti at Thobgram and later on he became the

permanent resident of Thobgram. The funeral works of Haradhan

was performed by Saraswati and Bhanumoti. I used to deliver the

share of crops in respect of suit property to Saraswati after the

death of Haradhan Pal."

The statement of DW-3 was corroborated by one

Jagabandhu Ghosh, DW-4. DW-6, Renubala Garai, an woman

aged about 75 years, resident of Village Barul also stated that as

follows:

"Ramratan Pal had one son and one daughter namely,

Haradhan Pal and Bhanumoti Pal. DW-7, Chandi Ghosh, DW-8,

Sk. Mahiuddin, DW-9, Sridhan Chandra Adhikari all aged

between 60 to 80 years and of the same village came forward to

depose that Bhanumoti Pal was the sister of Haradhan Pal and I

see no reason to why the evidence of these elderly people which

could not be demolished in their cross-examination should be

disbelieved. There is oral evidence of many other persons

supporting the claim of the defendants that Bhanumoti was the

sister of Haradhan Pal but I feel that on the face of the evidence

already discussed it would be redundant to discuss their evidence

one by one."

Insofar as the documentary evidence is concerned, the Trial

Court as well as the First Appellate Court had relied upon an

Exhibit 'K' a Deed No. 3305 dated 22-06-1977 executed by

Saraswati Ghosh, wife of Nishakar Ghosh whereby she sold some

portion of the lands as mentioned in the schedule belonging to

Haradhan Pal as heir of Haradhan Pal and in the recital of deed it

is mentioned that the properties were acquired by her from her

maternal uncle (Mamathakur), Haradhan Pal and she inherited the

same as the sole heir of said Haradhan Pal. This deed was

registered on 17-01-1978 and this suit was filed on 22-04-1996

almost 19 years thereafter.

In other words the claim of Saraswati Ghosh that she

inherited the properties as sole heir of the deceased Haradhan Pal

remained unchallenged for long 19 years. This registered sale

deed executed by Saraswati Ghosh is deemed to be a notice the

plaintiffs under section 3 of the T.P. Act, 1882. The plaintiffs

remaining inactive in spite of such sale by Saraswati Ghosh for

such a long period makes their claim regarding right, title and

interest over the suit property miserably barred by law of

limitation.

The plaintiffs could not lead any satisfactory evidence in

rebuttal to dislodge the claim of the defendants. The plaintiffs in

any event, have to prove their claim. On the basis of the oral and

documentary evidence, the views taken by the learned Trial Court

as well as the learned First Appellate Court is probable and

possible. Civil matter is required to be decided on the standard of

preponderance of probabilities. The conclusion arrived at by both

the courts is probable and possible. We have gone through the

grounds of the appeal. In our view, none of the ground requires

any substantial question of law, on the basis of which this second

appeal can be admitted.

With the above observation, the second appeal stands

dismissed at the admission stage. However, there shall be no order

as to costs.

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