Calcutta High Court (Appellete Side)
Amrita Lal Das & Ors vs Ar Nihar Bala Dey & Ors on 20 April, 2023
20 20.4.2023 SAT 207 of 2015
with
Ct-08 I.A No. CAN 1 of 2015(Old CAN No. 4625 of 2015)
CAN 2 of 2023
Amrita Lal Das & Ors.
Vs.
ar Nihar Bala Dey & Ors.
Mr. Saumyen Datta
Mr. Pinaki Brata Ghosh
... For the Appellants
The judgment of affirmation in a suit for
declaration and permanent injunction decreed by
the trial court in favour of the plaintiffs is the
subject matter of challenge in this second
appeal.
The facts admitted by the parties are that one
Madhusudan Dey, as displaced person from East
Pakistan, was allotted a plot of land in 1953 by
the Refugee Relief & Rehabilitation Department
of Government of West Bengal, Nadia District.
After his death the property devolved upon the
plaintiff no. 1, widow and her son, Amar Krishna
Dey. Amar alleged to have executed a deed of
sale on 4th December, 1972 in favour of the
plaintiffs. The factum and existence of the said
documents had surfaced when the defendants
allegedly tried to obstruct the plaintiffs from
enjoying the property in question.
The plaintiffs alleged that the defendant no.
1, namely, Amrita Lal Das, was a caretaker in
the suit property and taking advantage of the
absence of the plaintiffs he made interpolation
and manipulated the record of rights to show
that he is the owner of the property based on a
sale deed dated 4th December, 1972.
The plaintiffs came to know the existence of
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the said deed on 5th September, 2004 when the
defendant no. 1 refused the plaintiffs to enjoy
usufruct of the suit property on the plea that the
property was sold by Amar on 4th December,
1972. The plaintiffs have categorically stated
that the State of West Bengal is the owner of the
suit property and Amar has no right, title and
interest in respect of the suit property.
Accordingly, such transfer by Amar is void ab
initio.
The defendant nos. 1(b) to 1(h) and defendant
nos. 5 and 6 contested the suit by filing separate
written statement denying all the material
allegations made in the plaint against them. In
the written statement filed by the defendant nos.
1(b) to 1(h) it was alleged that from January
1970 Gayanendra Charan Das (original
defendant no. 1 since deceased), the
predecessor-in-interest of the defendant nos. 1(b)
to 1(h) took forcible possession of plot nos.
574/619 and 675/5937 and since then he was
in possession for more than 20 years and
thereby acquired statutory right by adverse
possession. Gayanendra thereafter purchased
those property on 4th December, 1972 from Amar
Krishna Dey, the son of the plaintiff no. 1. The
name of the said defendant was recorded as
"Bina Anumati Dakhal". In January 1974 the
plaintiffs demanded possession alleging that
these are their property, which the said deceased
defendant did not agree but driven them out
from the suit property.
The defendant nos. 5 & 6 in their written
statement alleged that the suit property belonged
to the Refugee Relief & Rehabilitation
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Department of Government of West Bengal and
the said department allotted the suit property to
Madhusudan Dey but no deed has been given to
him or anyone conferring any absolute right and
title of the suit property.
On the basis of the aforesaid pleadings the
trial court framed 9 issues and answered the
issues in favour of the plaintiffs partly.
The trial court as well as the first appellate
court have proceeded on the basis that the
defendants did not have their original title but
Madhusudan was the absolute owner of the
property in question. However, it is admitted
position that the suit property was allotted to
Madhusudan Dey by the Refugee Relief &
Rehabilitation Department of Government of
West Bengal and after his death Amar being the
son of original allottee along with other legal
heirs possessed the suit property, but as the suit
property belonged to Government of West Bengal
at that time Amar had no right to sale or transfer
the suit property. So the sale deed executed by
Amar on 4th December, 1972 was illegal and void
and as such the defendant nos. 1 (b) to 1(h) or
their predecessor-in-interest did not acquire any
title.
It is trite law that a person is competent to
transfer any property only if he has subsisting
right, title and interest in it. It is admitted
position that on the date of alleged transfer Amar
had no right, title and interest over the suit
property. Accordingly, the transfer made by
Amar is illegal and void.
With regard to the possession, both the
courts below had relied upon the report of the
Commissioner. The report of the Commissioner
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being Exhibit-8 dated 18th November, 1996 has
been submitted by the District Rehabilitation
Officer, Nadia in connection with the order dated
13th August, 1996 passed by Hon'ble Justice Mr.
N.K. Moitra, the then Judge of High Court
Calcutta, in connection with C.O 9206(w) of 1996
stating that Smt. Nihar Bala Dey is exclusively in
effective possession over State Plot no. 277 and
for the two agricultural plot nos. 312 and 734
some contradictory documents have been
produced by both of Dey and Das family though
Nihar Bala Dey's effective possession over the
said two plots may not be denied straightway.
Both the courts considered Exhibit-8 and
have arrived at a conclusion that the said exhibit
issued by Government clearly mentioned that the
suit property was allotted to Madhusudan and
unless the document is cancelled by the
Government, no one can deal with the property
claiming ownership. The land record produced by
the respondents in denying the rights of the
plaintiffs has lost its evidentiary value as the title of
the plaintiff is established by the document
showing allotment by the Government to
Madhusudan under Relief Rehabilitation Scheme
1953. This document clearly establishes that Amar
had no title.
On such consideration, we do not find any
reason to interfere with the well-reasoned order
passed by the trial court and since affirmed by
the first appellate court.
The appeal accordingly fails.
The second appeal is, therefore, summarily
dismissed under Order XLI Rule 11 of the Code of
Civil Procedure at the admission stage.
In view of dismissal of the appeal, nothing
remains to be decided in the application for stay
being CAN 4625 of 2015 and the same is
accordingly dismissed.
However, an application being CAN 2 of 2023
has been filed for recording the death of the
appellant no. 1. The appellant no. 1, Sri Amrita Lal
Das, died intestate on 26th June, 2015 leaving
behind her widow, namely, Smt. Chhaya Das, as
his legal heir and representative.
It is submitted that no contact was established
with Smt. Chhaya Das. Be that as it may, for the
purpose of purity of the record, we allow the
application for recording the death of the appellant
no. 1.
CAN 2 of 2023 is accordingly disposed of.
Office shall carry out the necessary amendment
in the cause title of the memorandum of appeal.
The department has reported that original
application being CAN 2 of 2023 has not been
traced out. The photocopy of the said application
supplied by the appellant shall be treated as
original till the original application is traced out.
There will be no order as to costs.
(Uday Kumar,J.) (Soumen Sen, J.)
