Sri Binod Bihari Manna vs Sri Bibhuti Bhusan Manna & Ors
2022 Latest Caselaw 1297 Cal

                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE SOUMEN SEN
              &
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                                SA 59 of 2020
                                    With
                        I.A. No. CAN 1 of 2020(old No. CAN 295 of 2020)
                           Sri Binod Bihari Manna
                                     Vs.
                      Sri Bibhuti Bhusan Manna & Ors.

For the Appellant             :     Mr. Anirban Mitra
                                    Mr. Amit Halder
                                    Md. Wasim Akram
                                    Mr. Akash Ghosh


Heard on                      :     09.03.2022

Judgment on                   :     17.03.2022



Ajoy Kumar Mukherjee, J. :


1.

Being aggrieved by and dissatisfied with the Decree and judgment dated

30.07.2019 passed by Additional District and Sessions Judge 1 st Track Court ,

Basirhat in Title Appeal No. 32 of 2015, arising out of the judgment and decree

dated 24.06.2015 passed by the learned Civil Judge (Senior Division), Basirhat

in Title Suit No. 60 of 2001, the defendant/appellant has preferred the present

second appeal before us.

2. Plaintiffs case in brief is that by way of several deeds plaintiff No. 1 to 3

and defendant No. 1 by separate deeds got 39 satak of land in the suit

property and enjoying by way of amicable arrangement, their respective portion

after raising constructions, and planting trees. Plaintiffs asked defendant for

making partition of the suit property by metes and bounds, in terms of

settlement deed dated 1st Falgun 1407 B.S., but the defendants did not agree

and defendant No. 1 thereafter threatened the plaintiffs that he would

dispossess them from the suit property and would cut down the trees planted

therein and for that reason, plaintiff filed the suit for partition.

3. Defendant No. 1 contested the suit by filing written statement and

contended that about 18 to 19 years ago he acquired 15 satak of land adjacent

to the main road and has raised construction after incurring huge expenditure.

Further case of defendant No. 1 is that subsequently he acquired 14 satak of

land form plaintiff No. 3 by way of oral ewaz and he is enjoying that land.

Accordingly defendant No. 1 has got separate allotment in respect of the said

29 satak of land including said 14 satak of land which he acquired by way of

oral ewaz with plaintiff No. 3.

4. Learned Trial Court after considering pleadings submitted by both the

parties, framed 10 issues. In order to prove plaintiff's case plaintiff Bibhuti

Bhusan manna and one Prabir Chakraborty faced the dock as PW1 and PW2

respectively and to prove defence case, defendant No. 1 and one Panna Lal Giri

were examined as DW1 and DW2 respectively. Plaintiff has proved 14 deeds,

and concerned rent receipts, which are marked as exhibit and on the other

hand defendant filed and proved deed No. 2471 dated 02.05.1990 and rent

receipts in connection with the LR Khatian No. 1263/1 which are also marked

as exhibit.

5. After considering materials in the record, including evidence and

documents, learned trial court held that plaintiff is entitled to obtain 39

decimal of land out of 78 decimal mentioned in the schedule to the plaint and

accordingly he gave two months time to partition the suit property by metes

and bounds, failing which either party will be at liberty to make prayer for

appointment of partition commissioner for executing preliminary decree.

Defendant preferred appeal against the judgment and decree which was

disposed of by learned Additional District Judge, Basirhat, on 31.03.2011.

Learned Appellate Court was pleased to allow the appeal on contest and was

further pleased to set aside, the judgment and decree passed in T.S. 60 of 2001

dated 30.05.2008 and 24.06.2008 respectively. Learned Appellate Court was

further pleased to send back the case record on remand for deciding afresh

after allowing plaintiff to prove their documents already filed and defendant to

adduce fresh evidence on their behalf. After remand, the trial Court again

decreed the suit in preliminary form declaring plaintiffs' ½ share i.e. 39 ½

decimal of land in the suit property and directed the parties to make amicable

partition by metes and bounds, in terms of preliminary decree.

6. Learned Trial Court did not believe that there was any ewaz in between

defendant No. 1 and plaintiff No. 3, as the property in question is valued more

than Rs. 100/-and as such act of exchange without registration cannot sustain

in the eye of law. Learned Trial Court also held there was no witness in whose

presence alleged oral ewaz was made and on the contrary the document shows

that the suit property measuring 39 decimal of land has been purchased by the

predecessor of the plaintiffs and defendant. He further held that defendant No.

1 has no right to claim 14 decimal of land which he claimed to have acquired

through alleged oral ewaz. There is no whisper in the evidence of defendant as

to how much land has been exchanged in between plaintiff No. 3 and

defendant No. 1 and surprisingly plaintiff No. 3 has not come before the court

to give evidence in support of oral ewaz. The rest defendants also did not

come to support defendant No. 1's acquisition of said 14 satak of land by way

of oral ewaz. Accordingly learned Trial Court turned down defendant No. 1's

claim of acquisition of title in respect of 14 decimal of land, by way of oral ewaz

with plaintiff No. 3.

7. Being aggrieved by the aforesaid judgment and decree dated 24.08.2015,

defendant No. 1 preferred First Appeal and said first appeal came up for

hearing before the Learned Additional District Judge , First Court Basirhat,

being title appeal No. 32 of 2015. Learned First Appellate Court also framed 11

issues, out of which he has dealt with the issue No.10 specifically concerning

the claim of defendant No. 1 that he has acquired right title possession in

respect of 29 satak of land, out which 14 satak alleged to have acquired by

him by way of oral ewaz with plaintiff No. 3. Learned First Appellate Court also

did not believe that defendant No. 1 acquired 14 satak of land by oral ewaz and

according to him, this claim of appellant is nothing but vogus and ridiculous as

no interest of any property valued more than Rs. 100/- can be passed by way

of oral ewaz and it must be made through registered instrument and by no

other means. Accordingly learned First Appellate Court did not find any wrong

in the findings of learned trial court and dismissed the First Appeal on contest

with exemplary cost of Rs. 5,000/-.

8. Being dissatisfied with the judgment and decree passed by the Learned

Additional District Judge 1st Track Court, Basirhat on 30.07.2019, defendant

No.1 sought to admit present second appeal, on the ground that substantial

questions are involved.

9. Defendant /Appellant mainly attacked the judgment passed by the First

Appellate Court, on the ground that learned court below completely overlooked

the fact that oral ewaz between defendant No. 1 and plaintiff No. 3 was a family

arrangement and such family arrangement is enough to effectuate partition

and on the basis of such partition defendant No.1/appellant is in possession of

land of a specific portion by way amicable partition. Learned Counsel for the

appellant strenuously argued that arrangement by way of oral ewaz was made

between family members i.e. plaintiff No. 3 and defendant No. 1 and as such

said oral ewaz requires no registration and the observation made by the courts

below that every transfer valued more than Rs. 100/- must be made through

registered instrument, suffers from perversity. He further contended that said

oral ewaz ,in the form of partition by metes and bounds does not require formal

registration and in this context he relied upon two case laws reported in Kale

and Others v. Deputy Director of consolidation and others, reported at

AIR 1976 SC 807 and reported in Roshan Singh and others v. Zile Singh

and others, reported at AIR 1988 SC 881.

10. In the present case the learned Courts below specifically held that there

is no documentary or oral corroborative evidence in support of defendant

No.1's claim of oral ewaz. Defendant No. 1 is claiming that the said oral ewaz

was made with plaintiff No.3, but said plaintiff 3 has not come to support

defendant No. 1's case of oral ewaz, nor defendant No. 1 produced any

document in support of oral ewaz. In this context paragraph 16 of the

Judgment reported in AIR 1988 SC 881 as referred by learned Counsel for

the appellant/defendant No. 1 can be profitably relied:

"16....in the present case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be reregistered. See: Rajangam Ayyar v. Rajangaam Ayyar, (1923) 69 Ind Cas 123: (AIR 1922 PC 266) and Nani Bai v. Gita Bai, AIR 1958 SC 706. It is well-settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document Exh. P-12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any

view, the document Exh. P-12 was a mere list of properties allotted to the shares of the parties." (emphasis added)

11. Furthermore the Kales's judgment as reported in AIR 1976 SCC 807

reiterates the same proportion of law and also laid down the essentials for

putting the binding effect of a family settlement in a concretize form in

paragraph 10 of the judgment which may be reproduced below :-

" (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangements may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17 (2) (sic) (Sec. 17 (1) (b)?) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."(emphasis added)

12. In view of above, fact remains that plaintiff No. 3 with whom alleged oral

ewaz took place did not face the trial nor supported the alleged oral ewaz with

defendant No. 1 and that even if it is assumed that the defendant No.1 is in

possession of said property , even then it does not create title in favour of

defendant No. 1, specially when from the available document and evidence

there is nothing to show that the suit property was ever partitioned amongst

co-sharers at any point of time. Accordingly we do not find any perversity in

the findings made by courts below nor we find any reason to interfere with the

ultimate findings of the court below and as such SA 59 of 2020 along with

connected application if any, are liable to be dismissed.

13. SA 59 of 2020 along with CAN 1/2022 stands dismissed.

There will be no order as to costs .

Urgent photostat certified copy of this judgment, if applied for, be supplied to

the parties upon compliance with all requisite formalities.

I agree


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