Calcutta High Court (Appellete Side)
Ct-08 vs Sri Niranjan Rudra & Ors on 22 September, 2022
25 22.9.2022 SA 63 of 2021
Sri Chittaranjan Rudra
Ct-08 Vs.
Sri Niranjan Rudra & Ors.
ar The appellant is not represented, nor any
accommodation is prayed on his behalf.
In terms of the order dated 27th January, 2022
a report has been filed by the Assistant Registrar-
XVI dated 17th May, 2022.
The report filed by the Assistant Registrar-XVI
dated 17th May, 2022 shall be placed in the
administrative side.
The appeal was presented in the year 2002.
Thereafter, it was registered as SA 63 2021.
The appeal initially appeared in the list on
27th January 2022, but the matter was released
by a coordinate bench due to lack of
determination.
Thereafter, this matter appeared on 9th
September, 2022 and is appearing in the list
since then. It seems that the appellant has due
notice of the matter. We, however, propose to
decide the question of admission of the present
second appeal on the basis of the materials
available on record.
The judgment and decree of affirmation dated
September 28, 2001 passed by the learned Civil
Judge, Senior Division, 1st Additional Court,
Burdwan, in Title Appeal No. 74 of 2001 arising out
of judgment and decree dated April 16, 2001
passed by the learned Civil Judge(Junior Division),
1st Court, Burdwan,in Title Suit No. 58 of 1998 is
the subject matter of challenge in this appeal.
The plaintiff/appellant filed a suit for
declaration of title and permanent injunction. The
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plaintiff claimed that the suit property described in
schedule 'Ka' and 'Kha' are owned and possessed
by the plaintiff. The plaintiff stated that 'Ka' was
initially mortgaged to the father of the plaintiff and
due to failure on the part of the mortgagor to
redeem the mortgage the property was sold to the
father of the plainitff on 30.6.1939. The father of
the plaintiff purchased the property for the benefit
of the minor. 'Kha' schedule property was
purchased by the father of the plaintiff from one
Nirmala Dasi by registered sale deed dated
11.06.1940
for the benefit of the plaintiff. The
plaintiff when was minor used to possess and
cultivate 'Ka' and 'Kha' schedule properties along
with his brother and kept the income of the said
properties with her mother.
It is alleged that the plaintiff out of the said
income purchased 'Ga' schedule property from one
Ratikanta Shyam by registered sale deed dated
30.4.1953 and has been possessing the same since
purchase. It is stated that the plaintiff purchased
certain properties in the name of and for the benefit
of his youngest son, the defendant no. 1 herein and
during his minority income of the said properties
used to be kept with mother of the plaintiff. Since
after attaining majority the defendant no. 1 was
possessing the said properties and got his name
recorded in the R.S.R.O.R.
The plaintiff alleged that the defendant no. 1
with ulterior motive got about 1½ bighas of land
out of 20 bighas purchased in his name recorded in
the name of plaintiff, which the plaintiff got to know
on 25.7.1998. On attaining majority the father of
the plaintiff handed over the deed of purchase in
his name with a direction to cultivate the suit
properties and also handed over Rs.10,000/-
towards income from the suit property and since
then the plaintiff has been possessing the suit
properties in his own right. The plaintiff and his
father being less educated and the plaintiff's father
being old, the defendant no. 1 was entrusted for
recording the name in R.O.R, as the defendant no.
1 was more educated and the defendant no. 1,
betraying the trust, got the suit properties recorded
in the R.S.R.O.R in the name of plaintiff and the
defendant no. 1 in 8 annas share each. The
plaintiff had no knowledge about the same till
1984.
Upon enquiry the plaintiff came to know about
erroneous R.S and L.R.R.O.R and in view thereof,
the plaintiff claimed declaration that the plaintiff is
the true owner of the land in question. For the said
reason, the plaintiff filed Title Suit No. 108 of 1984
before the trial Court with an objection under
Section 51A(4) of West Bengal Land Reforma Act,
which was dismissed. The plaintiff during the
pendency of the suit stated that the documents
related to the appeal could not be traced and
ultimately, he withdrawn the Title Suit No. 108 of
1984 on the assurance of some local people.
The plaintiff alleged that the suit was
withdrawn on good faith and the defendant no. 1
taking advantage of that denied plaintiff's title over
the suit properties on and from 25.7.1998 and to
dispossess the plaintiff from the suit properties,
hence the suit.
The defendant no. 1 contested the suit by filing
written statement denying the case put forward in
the plaint.
The Trial Court dismissed the suit in observing
that the suit property was purchased by the father
of the plaintiff for his own benefit. The Trial Court
also observed that the suit property was not
purchased for the benefit of the plaintiff and the
entries in R.S.R.O.R were correct and, as such the
plaintiff was not the absolute owner in respect of
the suit property. This decree was challenged in
the appeal.
The first appellate court in affirming the said
decree passed by the trial court observed that the
payment of consideration, motive and in whose
interest and benefit the property was purchased are
the main ingredients in this suit to come into
conclusion as to whether the property was
purchased by the father of the plaintiff and the
defendant for the benefit and interest of his family.
Admittedly, the plaintiff and the defendant were
minors at the time when the suit property
described in schedule 'ka' and 'Kha' of the plaint
were purchased. The positive case of plaintiff is
that the father of the plaintiff had been in
possession of the suit properties on behalf of the
plaintiff and the father of the plaintiff used to keep
the income of the suit properties to the mother of
the plaintiff. But the said income from the suit
property described in schedule 'ka' and 'Kha' of the
plaint, the plaintiff purchased the suit property
described in schedule 'Ga' of the plaint. However,
the plaintiff could not produce any paper or
document showing that the income of the suit
property described in schedule 'ka' and 'Kha' were
kept in the custody of the mother of the plaintiff,
even no corroborative oral evidence was
forthcoming in this regard. It was also not proved
that the suit property described in schedule 'Ga'
was purchased out of the income generated from
the suit property described in schedule 'ka' and
'Kha' of the plaint.
It is also clear from the pleadings and the
evidence that the plaintiff and the defendant no. 1
both were minors at the time of R.S operation and
therefore, the question of being entrusted upon the
defendant no. 1 by the plaintiff for recording the
name in R.S.R.O.R could not be believed and at the
relevant point of time, the father of the plaintiff was
also alive. There was strong presumption that the
father of the plaintiff may have taken all necessary
steps for recording entry in the R.S in connection
with the suit property. R.S record clearly indicates
that the names of the plaintiff and the defendant
no. 1 have been recorded in respect of the suit
property in equal shares.
Based on such consideration supported by the
evidence, both oral and documentary and the view
taken by the trial court as well as the first appellate
court on such evidence, does not appear to be
perverse.
In view thereof, we find no substantial question
of law involved in this appeal for which the same is
required to be admitted.
The second appeal is, therefore, summarily
dismissed under Order XLI Rule 11 of the Code of
Civil Procedure.
There will be no order as to costs.
(Uday Kumar ,J.) (Soumen Sen, J.)
