Md. Murtuja Hossain & Ors vs Ashraf Sk. & Ors
2023 Latest Caselaw 1479 Cal

28.02.2023
SL No.9
Court No.8
    (gc)


                              FA 72 of 2014

                       Md. Murtuja Hossain & Ors.
                                   Vs.
                            Ashraf Sk. & Ors.

                                 Mr. Rwitendra Banerjee,
                                 Mr. Shibasis Chatterjee,
                                 Mr. Sandip Kundu,
                                 Mr. Devdutta Pathak,
                                                    ...for the appellants.

                                 Mr. Sayan Chattopadhyay,
                                 Mr. Soumen Biswas,
                                 Mr. Koustav Sen,
                                 Mr. Ivan Sarkar,
                                     ...for the Respondent Nos.2, 4 to 13.

Soumen Sen, J. (oral): The appeal is arising out of

an order dated 21st day of December, 2013 passed by the

Civil Judge, Senior Division, Malda in a suit for

declaration of title and permanent injunction.

The learned Trial Judge dismissed the suit.

Briefly stated, one Bajan Mahajan was the original

owner of total 123 decimals of land situated in C.S. plot

No. 646 and 49 decimals of land in C.S. plot no.639 under

Mouza Purba Hossainbad, District Malda.

On 8th February, 1939 Bajan by an unregistered

deed of sale sold and transferred 57 decimals of land in

C.S. plot no.646 in favour of Habil Sheik. at a

consideration of Rs.49/-. While Habil Sk. was in peaceful

possession of 57 decimal of land in plot no.646 he died

leaving behind him, his three sons Kutubuddin Sk. Baisu

Sk. and Mamtaj Sk as his legal heirs and successors. The

only daughter of Habil namely Lajjo Bewa predeceased her

father Habil.

Subsequently, on 24th October, 1944 Bhajan sold

and transferred 62 decimals of land in C.S. plot no. 646

and entire 49 decimals of land in C.S. Plot No.639 to his

three brothers Bhado Sk., Hazrat Sk. and Hezabuddin

Biswas. Thereafter by an oral Hebanama, Bhajan

transferred the residue 4 decimals of land in C.S. plot

no.646 to the aforesaid three transferees.

Bhado Sk. died as a bachelor leaving behind him

two brothers Hajrat and Hezabuddin as his legal heirs

and successors who became the owner of 55 ½ decimal of

land each in the said two plots. While Hezabuddin and

Hajrat were in ejmal possession of the said 111 decimal of

land the said two brothers amicably divided the said

property whereby Hezabuddin received 55 ½ decimal of

land in plot no.646 and Hazrat Sk. got 10 ½ decimal of

land in plot no.646 and 40 decimals of land in plot

no.639.

While Hezabuddin was in possession he transferred

his 55 ½ decimal of land by way of registered sale deed

dated 18th April, 1956 in favour of three sons of Habil Sk.,

namely, Kutubuddin Sk., Baisu Sk., and Momtaj Sk. By

reason of the aforesaid transfer the said three sons of

Habil became the owner of 112 ½ decimal of land in plot

no.646 and as owner thereof they constructed dwelling

house and planted mango trees.

Hajrat Sk. was also in possession of 55 ½ decimal

of land in plot no.646 and 639. Subsequently, State of

West Bengal for construction of road acquired 64½

decimal of land in plot no.646. By reason of such

acquisition the possession of land by Kutubuddin, Baisu

and Mamtaz had reduced to 48 decimal of land. Baisu

died leaving behind him his wife two sons and one

daughter that is plaintiff nos.2 to 5 as his legal heirs and

successors. Mamtaj during his life time transferred his

share in suit plot no.646 by a registered deed of sale

dated 26th April, 1979 and he delivered possession of the

said land to the plaintiffs. Kutubuddin also transferred

his share by way of Heba-Bil-Ewaj dated 10th August,

2003 in favour of plaintiffs.

The said deed was written by Abdul Kashem in

presence of the witnesses namely, Merajul Hoque, Md.

Abu Sajan and Kutubuddin Sk. put his L.T.I on the said

Deed in presence of the plaintiff no.1.

While Hajrat Sk. was in possession of his share in

the suit properties in plot no.646, he transferred the same

to Defendants No.14 to 17.

The entire 123 decimal of land of plot no.646 have

been divided in separate Bata plots in the R.S. R.O.R.

The plaintiffs alleged that the R.S. R.O.R. was

wrongly prepared. The defendants nos. 1 to 13 have no

any right, title, interest and possession over the suit

properties. On the allegation of threatened disposition the

plaintiff filed a suit for declaration and partition.

The defendants contested the suit. In the written

statement it was alleged that there was no amicable

partition between Hazrat and Hejabuddin @ Hezabuddin

Sk. on January, 1, 1955. There were four brothers being

Bhadu Sk., Hazrat Sk. Hejabuddin @ Hezabuddin Sk. and

Gaful @ Gafur Sk and after the death of Bhadu Sk., his

interest devolved upon the other three brothers as Bhadu

Sk. died as a bachelor. Thereafter, there was a deed of

partition between Hazrat Sk., Hejabuddin @ Hezabuddin

Sk. and Gafur Sk. with regards to the portion of the suit

property owned and possessed by them in the year 1958.

Therefore, Hejabuddin @ Hezabuddin Sk. could not

have transferred 55.5 decimal of C.S plot No.646 in the

year 1956 as at that time he only had 29.33 decimal in

C.S plot 646 given that 66 decimal of C.S. Plot 646 was in

total transferred to three brothers so each had 22 decimal

and when one brother died his share of 22 decimal was

divided into three parts amongst the two other brothers

and fourth brother which is 7.33 decimal each making the

total 29.33 decimal. Even after the deed of partition in

1958 whereby Gaful @ Gafur Sk did not get any share of

the portion belonging to Bhadu Sk. Hejabuddin @

Hezabuddin Sk. got only 33 decimal in C.S. Plot no.646 as

per the deed of partition.

The case of the respondents no.1, 3 to 13 is that

their predecessor in interest [email protected] Sk.

only transferred portion of LR plot no.646 and not LR plot

nos. 646/1170 and 64/1203 which were all part of C.S.

plot No.646. The respondents no.1 to 13 have been in

possession of LR plot nos.646 of 1170, 64 of 1203

measuring 27 decimal and 08 decimal each and are

owners thereof.

Mr. Rwitendra Banerjee, learned Counsel appearing

on behalf of the appellants submits that the learned Trial

Judge has failed to take into consideration the admission

made in paragraph 14 of the written statement in which

they have clearly admitted that Bajan Mahajan at the

relevant point of time was left with .04 decimal of land in

Dag No.646 meaning thereby the rest of the land is in

possession of the appellants which is evident from

Exhibits 2 and 3. The said exhibits clearly describe the

boundary of the transferor and the claim of the plaintiffs

with regard to the 57 decimals of land in Dag No.646 is

duly established.

Mr. Banerjee submits that it has been judicially

recognized that the admission is the best piece of evidence

and the admission in pleading is an admission under

Section 58 of the Evidence Act which the Trial Court has

overlooked. Mr. Banerjee also submits that the

evidentiary value of an unregistered deed was considered

by a Coordinate Bench in Rajendra Nath Sarkar Vs.

Gour Gopal Ghosh & Anr. reported at AIR 1971 Cal

163 where in the context of the Bengal Tenancy Act, 1885

it was clearly stated that an unregistered document would

not be a bar in law of evidence to receive it for the purpose

other than for establishing a title. Mr. Banerjee further

submits that in absence of any evidence being established

by the respondents with regard to their claim over and in

respect of 57 decimals of land in Dag No.646, the party

being able to have a better evidence on title is entitled to

the relief. It is submitted that undoubtedly the two

documents executed by the predecessor of the

respondents read with their admission in paragraph 14 of

the written statement, prima facie establishes a better title

over and in respect of 57 decimals of land in Dag No.646

and the learned Trial Judge having not taken into

consideration the aforesaid aspect has clearly erred in

dismissing the suit.

Mr. Sayan Chattopadhyay, learned Counsel

appearing on behalf of the respondents has submitted

that the plaintiffs were unable to establish that after

acquisition of land by the State of West Bengal, they have

remained as owner in respect of the disputed portion of

the land and in absence of such plea being established at

the trial, the plaintiffs are not entitled to the reliefs. The

learned Counsel further submits that in respect of the

Bata plots, the respondents are in possession.

Mr. Chattopadhyay further submits that paragraph

14 of the written statement cannot be read in isolation

and it has to be read with paragraphs 12 and 13 of the

written statement.

The determination on the issue depends upon the

quality of the evidence led by the parties. The learned

Trial Judge did not consider the unregistered agreement

for sale and allow the appellants to mark it as an exhibit.

This, in our view, is contrary to the judgment of the

Hon'ble Division in Rajendra Nath Sarkar (supra). In

Rajendra Nath Sarkar (supra), it was clearly held that

there would not be any bar in law of evidence to receive

the unregistered document for purposes other than for

establishing title. This will be evident from the

observations made by the Coordinate Bench in Paragraph

6 of the said judgment. In the instant case, the

appellants are aware of the fact that by reason of Section

26-C of the Bengal Tenancy Act, he may not be able to

establish his title on the basis of the unauthorized deed of

sale but it cannot deny him to rely on the said document

for the purpose of establishing his possession.

We also find substance in the arguments of Mr.

Banerjee that admissions made by contesting defendants

in their written statement are binding upon them and

constitute waver of proof as held in Nagindas Ramdas

Vs. Dalpatram Ichharam alias Brijram & Ors.

reported at (1974) 1 SCC 242 paragraph 27. Mr.

Banerjee has argued that the unregistered deed of sale

read with Exhibits-2 and 3 are sufficient to hold that the

plaintiff is able to create a higher degree of probability of

his title to the land so as to shift the onus on the

defendant and it would be for the defendant to discharge

his onus and in absence thereof, the burden of proof lying

on the plaintiff shall be held to have been discharged so

as to "amount proof of the plaintiff's title", per Justice

Bhan in R.V.E. Venkatachala Gounder Vs. Arulmigu

Viswesaraswami & V.P. Temple and Anr. reported at

(2003) 8 SCC 752 Paragraphs 29 and 30.

In R.V.E. Venkatachala Gounder (supra), the

Appellate Court noted that the plaintiff was not able to

produce any deed of title directly lending support to his

claim for title and at the same time the defendant too has

no proof of his title much less even an insignia of title.

Being a civil case, the plaintiff cannot be expected to prove

his title beyond any reasonable doubt; a high degree of

probability lending assurance of the availability of title

with him would be enough to shift the onus on the

defendant and if the defendant does not succeed in

shifting back the onus, the plaintiff's burden of proof can

safely be deemed to have been discharged. (Per Justice

Bhan in R.V.E. Venkatachala Gounder (supra) at page

768, Paragraph 30).

This is crucial because of the argument made by

Mr. Banerjee that in relation to the suit property, the

defendants could not lead an iota of evidence and when it

is compared with the quality of the evidence produced

before the Trial Court by the plaintiffs in respect of the

property. If a thing or a state of thing is shown to exist,

an inference of it continuity within a reasonably

proximate time both forwards and backward may

sometimes be drawn which is discernible from the

illustration (d) to Section 114 of the Indian Evidence Act,

1872 and in appropriate cases, an inference of the

continuity of a thing or state of things backwards may be

drawn under this section, though on this point the section

does not give a separate illustration. (as per Justice

Bachawat in Ambika Prasad Thakur & Ors. Vs. Ram

Ekbal Rai (Dead) by His Legal Representatives & Ors.

reported at AIR 1966 SC 605 paragraph 15). This is

also a matter which needs consideration once the Trial

Court allow the parties to lead evidence on the

unregistered deed of sale for the limited purpose as

observed earlier.

Once we accept the unregistered deed for the

limited purpose as indicated above, it needs to be seen

how far the admission in paragraph 14 of the written

statement would benefit the plaintiffs in the suit.

Admissions in pleadings are admissible under Section 58

of the Evidence Act as held in Nagindas Ramdas (supra).

These are the matters to be considered afresh by

the Trial Court.

It appears from the nature of the dispute that the

appointment of a survey passed advocate commissioner is

necessary for elucidating and eliciting true facts. Both the

parties have agreed that an appointment of an advocate

commissioner is necessary. Accordingly, the learned Trial

Judge before hearing the suit shall appoint a survey pass

advocate commissioner on points to be suggested by the

parties.

In view of the aforesaid, the impugned judgment is

set aside.

The Trial Court is directed to hear the suit afresh

and while considering the pleadings and evidence shall

take into consideration, amongst other, the principles laid

down in the aforesaid judgments.

The appeal succeeds.

Accordingly, the appeal being FA 72 of 2014 is

allowed.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

I agree



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