Gopi Ballav Pal vs Aftabuddin Sk. & Ors
2022 Latest Caselaw 6436 Cal

09.09.2022 SL No.8 Court No.8 (gc) SA 144 of 2001 CAN 2 of 2001 (Old No: CAN 9403 of 2001)

Gopi Ballav Pal Vs.

Aftabuddin Sk. & Ors.

The second appeal appeared in the daily list on 8th

September, 2022 and no interest was shown by the

appellant to move the second appeal.

The appellant is also not represented today nor any

accommodation is prayed for on behalf of the appellant.

Although, the appellant has sufficient knowledge and

notice of the listing of this matter.

The appeal was presented on 24th November, 1999

out of time and an application for condonation of delay

was filed on 2nd December, 1999. However, no attempt

was made to move the said application by reason of such

indication on the part of the appellant, the second appeal

could not proceed only it was allowed on 14th February,

2001.

The second appeal is arising out of a decree of

affirmation dated 29th June, 1999 whereby the judgment

and decree passed by the learned Trial Judge on 30th May,

1998 in a suit for partition.

The partition suit was decreed in preliminary form

on contest against the defendant Nos.1 and 2 and ex

parte against the rest. The defendant No.1 is the

appellant. The defendant No.2 appears to have accepted

the decree. Briefly stated, one Hrishikesh Koley was the

original owner of the suit property who died in 1958

leaving behind five sons, two daughters and wife as his

legal heirs. According to the plaintiffs, the legal heirs of

Hrishikesh Koley inherited the property in equal shares in

accordance with the Hindu Succession Act. The plaintiffs

claimed that the State Government acquired 18 decimal of

land out of the suit plot for the purpose of constructing a

pump house and the same was correctly recorded in the

record of rights. The plaintiff Nos.1 and 2 claimed to have

purchased 2 4/7 decimal from Gobinda by a registered

deed dated 7th April, 1994 and 5 decimal from Netai and

Kanai by a registered deed dated 10th May, 1994. The

plaintiffs further claimed that the plaintiff Nos.1 to 3

purchased 9 decimal of land by a deed dated 9th June,

1994 from the son of Hrishikesh Koley, that is, Balai, the

wife of Hrishikesh and two daughters of Hrishikesh Koley.

According to the plaintiffs the wife died after execution of

the said deed and before registration, the plaintiff No.3

acquired 2 decimal of land and plaintiff Nos.1 and 2

acquired 4¾ decimal out of 9 decimal. The plaintiffs

claimed 14½ decimal share in the suit property. As the

defendants did not effect partition despite request the

plaintiffs instituted this suit for partition.

The State of West Bengal, defendant No.8, contested

the suit by filing a written statement contending inter alia

that the suit has acquired 18 decimal of land out of 36

decimal in suit plot for constructing a pump house for

irrigation purpose. According to the State, acquisition of

18 decimal of land was recorded in L.R. R.O.R. The State

of West Bengal challenged the maintainability of the suit

because of non-service of notice under Section 80 CPC.

The defendant Nos.1 and 2 contested the suit by

filing a written statement contending inter alia that the

suit plot corresponds to C.S. plot Nos.64, 49 and 63 and

total area of the same was 45 decimal. According to the

defendants, one Korim Baksh was the original owner of

the suit property who by a deed dated 21st July, 1955 sold

the same in favour of Hrishikesh Koley. The defendants

stated further that Hrishikesh Koley died prior to

commencement of the Hindu Succession Act leaving

behind five sons and wife as his legal heirs. According to

the defendants these five sons and wife by a deed dated

14th June, 1957 sold the same to one Bijoy Bhusan Pal.

So by purchase Bijoy Bhusan Pal became the owner of

C.S. plot Nos.64,49 and 63 measuring 45 decimal. The

further contention of the defendants is that the

Government acquired 9 decimal of land and as such the

total area of the plot was recorded as 36 decimal.

According to the defendants the entry in R.S. R.O.R. is

erroneous. The defendants stated further that

Government acquired further 18 decimal of land and

thereafter while Bijoy Bhusan Pal was in possession of the

remaining 18 decimal of land he died leaving behind the

defendant Nos.1 & 2 and one Anadi Kr. Pal as sons, his

wife and mother as his legal heirs. According to the

defendants the plaintiffs have no right, title and interest

in the suit property. The defendants asserted with vigour

that Hrishikesh Koley died prior to commencement of

Hindu Succession Act. The defendants pray for dismissal

of the suit.

On the basis of the aforesaid pleadings, the Trial

Court framed nine issues. The learned Trial Judge found

inconsistency in the pleadings and evidence of defendant

No.1 with regard to the possession of the family of

Hrishikesh and has returned a finding that the evidence

of D.W.-1 that Hrishikesh has six sons cannot be

accepted. Insofar as the suit plot corresponds to C.S. plot

Nos. 64, 49 and 63 is concerned, the defendants could not

file any C.S. Khatian. The defendants produced a certified

copy of the deed of purchase by their predecessor-in-

interest. The said deed was marked as exhibit -B. The

property covered by exhibit-B is not identical with the suit

property. Though the property was purchased in 1957

particularly on 14th June, 1957 but there is no mention of

corresponding R.S. plot in the said deed. The defendants

did not produce their original deed nor there is any

explanation for non-production of the original deed. The

rent in respect of the suit plot is found to be Rs.4-9-4

pies. But according to exhibit-B the said rent is Rs.1-11-

4 pies. No rent receipt was produced by the defendants.

There is mention in the deed that the Surveyor of the

State prepared CHITHA map, but no such map was

produced by the defendants.

The defendants were unable to show that the suit

plot corresponds to C.S. plot Nos.63,64 and 49. In

absence of such evidence, the learned Court was justified

in rejecting the contention of the defendants that their

predecessor-in-interest, namely, Bijoy Bhusan Pal became

the owner of the suit property on the strength of purchase

from Hrishikesh Koley. The onus lies on the said

defendants to produce cogent evidence in support of claim

of ownership in respect of the said plots. The learned

Trial Judge has taken into consideration the deed of

purchase. It appears that by a deed dated 7th April, 1994,

the son of Hrishikesh named Gobinda sold 2 4/7 decimal

of land in favour of the plaintiff Nos. 1 and 2. A question

was raised with regard to the said sale by Gobinda in

favour of the plaintiffs. The learned Trial Judge has taken

into consideration the evidence of P.W.-1 in which he has

stated that their mother Krishna @ Dasubala died after

execution of a deed and before registration of the same.

Such evidence of P.W.1 remains uncontroverted by way of

cross-examination. So the unchallenged oral testimony of

P.W.1 goes to show that their mother Krishna died. So

the share of mother in the suit property will devolve upon

the sons and daughters and thereby each son and

daughter will get 2 4/7 decimal out of 18 decimal. So

Gobinda had salable right to the extent of 2 4/7 decimal.

Similarly, in respect of Netai and Kanai, the

following finding was arrived at:-

"We further find that two sons of Hrishikesh Koley, viz., Netai and Kanai sold 5 dec. of land in favour of plaintiff nos.1 & 2 by two deeds (exts. 8 &

9). On the death of mother Netai and Kanai jointly inherited 2 4/7 X2=5 1/7 dec. of land out of 18 dec. So they have salable right to the extent of 5 dec. of land. We further find that by two deeds Balai, wife of Hrishikesh and two daughters of Hrishikesh sold 6 dec. and 3 dec. of land totaling to 9 dec. of land in favour of plaintiff nos.1 & 2 and plaintiff no.3 respectively. As it is disclosed in the evidence that because of death of Krishna @ Dasubala after execution and before registration of the deeds the Registrar refused to register the deeds in respect of the share of the mother. So by such deeds the plff. Nos. 1 to 3 will not get 9 dec. but will get 6 ¾ dec. land. So by purchase the plaintiffs got 2 4/7 +5+6 ¾ out of 18 dec. i.e. 14 9/28 dec. out of 18 decimal."

The contention of the plaintiff that the defendant

Nos.1 and 2 purchased the property from Dulal Chandra

Koley was proved by Exhibit-10. From the said deed, it is

clear that Dulal Chandra sold 18 decimal of land in favour of

the defendant Nos.1 and 2. Dulal Chandra on the death of

his mother will inherit only 2 4/7 decimal of land, hence, he

had no salable interest to the extent of 18 decimal of land.

In terms of the said deed, the defendant Nos.1 and 2

could only get 2 4/7 decimal of land. The defendant Nos.3

and 4 were competent to sell 5 1/7 decimal of land and

having sold 5 decimal of land out of the aforesaid

ownership remaining 1/7th decimal of land remained with

them. The defendant Nos.5,6 and 7 have sold 6 ¾

decimal of land in favour of the plaintiffs and by reason of

such sale, they would have with them the remaining 2 4/7

X 3 - 6 ¾ = 27/28.

It was on the basis of such findings, the preliminary

decree was passed reserving right of the State of West

Bengal to get an allotment of 18 decimal of land at the

final decree proceeding. This decree was challenged by

the present appellant. All other parties have accepted the

said decree. The meticulous finding of the learned Trial

Judge based on oral and documentary evidence was not

interfered with by the First Appellate Court on

appreciation of evidence. On the basis of evidence

adduced by the parties and as would reveal from the

documentary evidence, we are unable to interfere with the

concurrent findings of facts with regard to the entitlement

of the shares by the parties in the suit.

In view thereof, we do not find any substantial

question of law is involved in the second appeal.

The second appeal, accordingly, stands dismissed at

the admission stage.

In view of dismissal of the second appeal, the

connected application also stands dismissed.

However, there shall be no order as to costs.

In the event the final decree is still pending, we

request the learned Civil Judge (Senior Division),

Berhampore, Murshidabad to conclude the proceeding of

Partition Suit No.221 of 1995 at the earliest.

The Registrar Administration (L&OM) is directed to

communicate this order to the learned Trial Judge for

information and doing the needful.

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