Sudhangshu Sahoo vs Kalipada Sahoo
2022 Latest Caselaw 710 Cal

                                     1


                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE

Present:
The Hon'ble Justice Soumen Sen
                And
The Hon'ble Justice Ajoy Kumar Mukherjee

                           SAT 152 of 2020
                                With
                            CAN 1 of 2021
                            CAN 2 of 2021

                          Sudhangshu Sahoo
                                Vs.

                            Kalipada Sahoo

                      (Through Video Conference)


For the Appellant                        : Mr. Sk. Rejaul Alam, Adv.

For the Respondent                       : Mr. Mrinal kanti Ghosh, Adv

Order dated                              : 21.02.2022


      Ajoy    Kumar     Mukherjee,       J.(oral):   Being   aggrieved   and

dissatisfied with the judgment and decree dated 30th June 2020

passed by the learned District Judge, Paschim Medinipur in the other

appeal No. 74/2018, present appeal has been preferred by the

appellant. By the impugned judgment learned First Appellate Court was

pleased to dismiss the appeal and affirm the judgment and decree dated

7th December, 2017 passed by the Learned Civil Judge (Junior

Division), 3rd Court, Paschim Medinipur in connection with Other Suit

being No. 151/2017.

Plaintiffs case before the Trial Court in a nutshell is that suit

property originally belong to Sisir Kumar Sahoo who transferred the

suit property by way of registered deed of gift in favour of his wife Gita

Rani Sahoo on 13.03.1991 and the name of said transferee Gita Rani

Sahoo duly recorded in the L.R. Record of Rights and she also paid

government rents. Said Gita Rani Sahoo is mother of both plaintiff and

defendant. In 1997-1998 said Gita Rani Sahoo made addition alteration

of the property. Defendant is running a grocery shop in the suit

property subsequently said Gita Rani Sahoo had transferred suit

property in favour of plaintiff on 12.12.2001 by a registered deed of gift

Plaintiff use to run a hardware shop. Business of plaintiff has been

flourished in the meantime and his shop in the suit house became in-

sufficient to continue his business. The period of 3 years of license of

the defendant has been expired in the meantime and on 25.05.2007

plaintiff terminated license granted to the defendants and asked him to

vacate the said premises within one month. However, the defendant

refused to vacate the suit property and as such said suit was filed.

Defendants case on the contrary is that Sisir Kumar Sahoo was

medically unfit for 3 to 4 years prior to his death and he was not in a

position to execute deed of gift in favour of his wife Gita Rani Sahoo

and further case of the defendant is that mother of plaintiff

fraudulently executed deed of gift in favour of plaintiff and for which

defendant/appellant has filed a separate suit being T.S. 234/2014 for

cancellation of said deed before the Civil Judge (Junior Division), 3rd

Court, Paschim Medinipur which is still pending. Accordingly,

defendants contention is that deed executed by Sisir Kuamr Sahoo in

favour of Gita Rani Sahoo is void and illegal and deed was not executed

voluntarily and said deed of gift never acted upon. Moreover, the

subsequent deed executed by Gita Rani Sahoo in favour of plaintiff is

also a void deed. In addition to that defendant is running business in

the suit premises since 1990 and therefore he has acquired title in

the suit property by way of adverse possession also and accordingly he

prayed for dismissal of the suit.

The Trial Court has framed five issues during trial. Original

registered deed of gift in favour of plaintiff for the year 2001 is marked

as Exhibit 5. Plaintiff himself deposed as PW1 and he has also brought

his mother Gita Rani Sahoo as PW2 and another witness Soumen Pal

has deposed on behalf of the plaintiff as PW3. On the contrary

defendant has brought as many as Five witnesses and he has filed

miscellaneous receipt and fees paid to Municipality as well as certificate

of enlistment, electric bill etc which are marked as exhibits on behalf of

defendant.

The Learned Trial Court after considering the evidence and

documents as submitted by both the parties came to the finding that

defendant has miserably failed to prove his case of family settlement or

that he has acquired title in the suit property by way of adverse

possession. On the contrary plaintiff has clearly proved his right title in

the suit property. Moreover Exhibit 5, i.e. the deed of gift by which

plaintiff acquired title in the suit property has not been declared as null

and void by any competent court of law and the license granted to

defendant has expired by lapse of time and as such learned trial court

passed decree of declaration and recovery of possession by his

judgment dated 07.12.2017 in O.S.. No. 195/2014.

Being aggrieved and dissatisfied with the said judgment dated

07.12.2017 defendants/appellant preferred the first appeal which came

up for hearing before the additional District Judge Special Court

Paschim Medinipur, being Other Appeal No. 74 of 2018. The Learned

First Appellate Court by its judgment dated 30.06.2020 was pleased to

dismiss the appeal without cost and affirmed the judgment and decree

dated 07.12.2017 passed in O.S. No. 195/2014 on the ground that

DW1 in his cross examination has admitted that the suit property

belonged to his father Sisir Kumar Sahoo and Municipal record stands

in his name and DW1 also admitted his mother's signature on the deed

of gift executed by his mother in favour of plaintiff. Moreover, doner

Gita Rani Sahoo deposed as PW2 and she has stated that she

voluntarily gifted the suit property to his elder son that is the plaintiff

where the defendant is running his grocery shop . Moreover, DW1 in his

cross examination admitted that there is no question of adverse

possession in the suit property and therefore defendant did not support

his alternative plea of adverse possession. There is no evidence that

Sisir Kumar Sahoo had relinquished his title in respect of plot No. 303

and 304 by way of oral family settlement. There is not material to show

that the oral family settlement was ever acted upon and on the

contrary it emerges from the evidence of plaintiff that the statement of

plaint has been corroborated by exhibit 1,2, 4 and 5 and on the other

hand evidence of DW1 appears to have not been supported by any

document or evidence. Accordingly he dismissed the appeal.

Learned Counsel for the appellant argued that by way of oral

statement, Sisir Kumar Sahoo had relinquished his share in the

property and as such Sisir Kumar Sahoo had no capacity to execute the

deed of gift in favour of his wife Gita Rani Sahoo and as such Gita Rani

Sahoo had no capacity to execute the deed of gift in favour of plaintiff

and to prove the same he has filed a separate suit for cancellation of

said deed of gift. Learned Counsel for the appellant raised the plea that

the defendant/appellant has become owner of the suit property by way

of family settlement long back and moreover he has perfected his title

by way of adverse possession as he is in possession of the suit property

since 1990.

Needles to say that where the question of title is involved and

plaintiff has prima facie title by dint of exhibit 5 to the knowledge of the

defendant who is in possession of the property , what defendant is

expected to prove is his right to possess the property in exercise of any

right, arising out of a transfer of interest either inter vivos or

testamentary or by adverse possession. (See Kumaresh Majumder v.

Binapani Sarkar reported in 2001(2) CLJ 475 and Tarumoni Mondal

And Ors. v. Prafulla Kumar Mondal And Ors. reported in 2006 (3)

CHN 1.)

If no such transfer of interest is proved, the basis of his

possession must be permissive. Here in the present case defendant

/appellant contended that long back oral family settlement took place

by which he acquired title in the suit property and as such Gita Rani's

husband Sisir Kumar Sahoo had no right to execute the deed of gift in

favour of Gita Rani Sahoo. For the said reason Gita Rarni Sahoo

acquired no right to execute deed of gift in favour of plaintiff. Defendant

/appellant has filed a separate suit for cancellation of deed of gift which

is pending.

Said deed of gift by Sisir Kumar Sahoo and subsequently by Gita

Rani Sahoo in faovur of plaintiff had not been declared as null void by

any competent of court of law till this date. Defendant/appellant has

also miserably failed to prove that there was any oral family statement

by which he has acquired title in the suit property. Transfer of share by

way of such oral alleged family settlement in respect of property valued

more than Rs. 100/- is not permissible in law. The alternative

contention taken by defendant/appellant, that he has perfected his title

by way of adverse possession has also not been proved and on the

contrary during the evidence he has relinquished his claim of

acquisition of title by way of adverse possession. Furthermore, where in

a suit, defendant claimed himself to be the owner over disputed

property on the ground of family settlement, the alternative plea by the

defendant that he had perfected his title by adverse possession, cannot

be allowed. A person who traces his possession to lawful title can never

become an owner by adverse possession.

In view of above we are not inclined to admit the second appeal in

view of the fact that no question of law far from substantial question of

law involved in the present context.

Accordingly the prayer for admission of second appeal is

dismissed.

      I agree


      (Soumen Sen, J.)                     (Ajoy Kumar Mukherjee, J.)