Sayad Ali Mondal & Ors vs Md. Janab Ali Mallick & Ors
2023 Latest Caselaw 170 Cal

06.01.2023 SL No.12 Court No.8 (gc)

SAT 354 of 2014 CAN 2 of 2014 (Old No: CAN 8536 of 2014) CAN 3 of 2015 (Old No: CAN 12342 of 2015) CAN 4 of 2015 (Old No: CAN 12354 of 2015) CAN 5 of 2015 (Old No: CAN 12355 of 2015)

Sayad Ali Mondal & Ors.

Vs.

Md. Janab Ali Mallick & Ors.

Soumen Sen, J. (oral): This matter appeared in the

Warning List of 29th November, 2022 with a clear

indication that this matter shall be transferred to the

Regular List on 5th December, 2022. Since then the

matter is appearing in the list. The appellants have due

notice of the matter. The appellants are not represented.

The appellate judgment and decree dated 31st

January, 2014 and 29th April, 2014 affirming the

judgment and decree dated 31st August, 2009 and 5th

November, 2009 by the Trial Court in a suit for

declaration and permanent injunction is a subject matter

of this second appeal.

We have carefully read the memorandum of appeal

and the judgment of both the Courts below. The suit was

decreed in part and on contest against the defendant

Nos.1 to 5 and ex parte against the rest of the defendants.

On perusal of the judgments, it appears that the suit

property (A schedule of property) consisting of 103

decimals of land (65 decimals in dag No.621 and 38

decimals in dag No.624) originally belonged to Ensan Ali

Mondal (14 annas shares) and Saharjan Bibi, mother of

Ensan Ali Mondal (2 annas shares) and after the demise

of Saharjan, her 2 annas shares devolved in Ensan Ali

Mondal result the accrual of 16 annas share of A schedule

of property in favour of Ensan Ali Mondal. From the

evidence as recorded in the judgments of both the Courts

it appears that said Ensan Ali Mondal died leaving behind

him 5 sons (defendant Nos.1 to 5), wife (defendant No.6),

2 daughters (defendant No.7 and Fatema Bibi/mother of

plaintiffs). The defendant took plea in defence that the

shares of the defendant Nos.6 & 7 have been transferred

to the defendant Nos.1 to 5. In this regard, they have

relied upon the deed being No.6380 for the year 2001

(exbt.A). No cogent and reliable evidence has come forth

from the side of the plaintiff to contradict the genuinity of

the exbt.A. Therefore, the exbt.A was accepted and relied

upon by both courts. In such situation, only the disputed

shares remain i.e. the share of Fatema Bibi/mother of the

plaintiff. So far the Muslim Farayez is concerned, Fatema

Bibi is entitled to near about 1/14th share of Ensan Ali.

This approximately is equivalent to the share as

mentioned in the prayer of the plaint. Now, the

defendants have stated in the case of defence that the

said Fatema Bibi during her lifetime executed an oral gift

of her such share in favour of the defendant Nos.1 to 5 on

receiving Rs.20,000/-. This fact is categorically denied by

the plaintiff. In such situation, burden of proving of the

said gift is upon the defendant Nos.1 to 5. On perusal of

evidence on behalf of the defendant Nos.1 to 5 it is found

that no witness was produced for corroboration of

execution of such deed. In fact, the D.W.1 in his cross-

examination has admitted that no witness is there in

respect of such gift save and except these contesting

defendants but other defendants would appear and

adduce evidence in support of due execution of the deed

of gift. It was noticed that no defendants have appeared

in this Court to adduce evidence in support of such gift.

D.W.1 in his cross-examination has further stated that

Fatema Bibi died some 6 to 7 years ago and one month

prior to her death she executed the said oral gift. This

means the gift was alleged to have been executed 6 to 7

years ago. In another portion of his cross-examination he

has further stated that the said oral gift was executed

some 3-1/2 and 4 years ago. Such statements are

completely contradictory and casts doubt as regards the

time and period of such deed.

On the basis of the aforesaid evidence, the Trial

Court has arrived at a finding that the alleged deed of

Fatema is not enforceable and it can be said that Fatema's

shares referred to above has remained intact. The

plaintiffs are the legal heirs of Fatema Bibi. Accordingly,

her shares as indicated would devolve upon the plaintiffs.

Insofar as the possession is concerned, the contention of

the plaintiffs was that the defendant Nos.1 to 5

unscrupulously recorded their names in L.R.R.O.R. in

respect of the entire suit property. But from the evidence

of P.W. 1 it is found that no steps have been taken for

correction of such alleged erroneous L.R.R.O.R. The

L.R.R.O.R. of the suit property stands in the name of the

defendant Nos.1 to 5 (exbt. 3, 4, 5, 6, 7/ exbt.B, B/1,

B/2, B/3) and in so far these L.R.R.O.R. are concerned it

can be said that the possession is in favour of the

defendant Nos.1 to 5.

In view of the aforesaid, the Trial Court arrived at a

finding that the plaintiffs are not in possession in respect

of the suit property. Since the plaintiffs were not found to

be in possession, the decree for injunction was refused.

The appellants before us are the defendants in the

suit. The appellants before the First Appellate Court

contended that landed property in Khatian no.340 and

Dag no.621 and 624 measuring 0.65 and 0.38 satak

respectively belonged to Enchan Ali Mondal to the extent

of 14 annas share and to Saharjan Bibi to the extent of 2

annas share. The schedule property measuring 1.03

satak was in joint possession of these two persons and

that R.S.R.O.R. was published accordingly in the name of

these two persons in respect of the suit property. The

plaintiffs have share in the 'Ka' schedule property of the

plaint to the extent of 1 anna 3 ganda 1 kora 1 kranti.

After death of Saharjan Bibi, her only son namely,

Enchan Ali Mondal became owner and possessor of entire

16 annas share in the suit property. While being an

owner and in possession of the suit property, Enchan Ali

died leaving behind 5 sons i.e. defendant Nos.1 to 5, wife

of defendant no.6 and two daughters i.e. defendant No.7

and another daughter being predecessor in interest of the

plaintiffs. While being in joint possession in the suit

property, the defendant no.6 & 7 and predecessor in

interest of the plaintiffs namely - Fatema Bibi entrusted

the defendant nos.1 to 5 for recording their names in

L.R.R.O.R. with respect to the schedule property as they

were females. On being asked by Fatema Bibi, defendant

No.1 to 5 told that L.R.R.O.R. had been duly recorded in

the name of defendant nos.6, 7 and Fatema Bibi. While

being owner and in possession of the suit property,

Fatema Bibi died leaving behind her husband i.e. plaintiff

no.1, four sons i.e. plaintiff nos.2 to 5 and two daughters

i.e. plaintiff nos.6 & 7. Due to development of strain

relation between the plaintiffs and defendants Nos.1 to 5

the later disclosed that they had got their names

exclusively recorded in the L.R.R.O.R. in respect to the

suit property, and threatened the plaintiffs for

dispossessing them from the suit property. If the

defendant Nos.1 to 5 have obtained L.R.R.O.R. recorded

exclusively in their names in respect to the said suit

property in connivance with the R.S.R.O.R. officials then it

would be fraud and illegal. The defendant nos.1 to 5 are

not the exclusively owner of the suit property. The

plaintiffs and the defendant nos. 1 to 5 are still in joint

possession of the suit property. The plaintiffs prayed for a

decree declaring that they have share to the extent of 1

anna 3 ganda 1 kora 1 kranti sharein the suit property

jointly with the defendants. The defendant Nos.1 to 5

have contested this case filing the written statement. The

defendants nos.1 to 5 have challenged the maintainability

of the Title Suit no.65/02 on the ground that it is not

maintainable, that it is barred by limitation, that is bad

for defect of parties, that it is barred under Section 34 of

the Specific Relief Act, that the plaintiffs are out of

possession and this case is not maintainable as there is

no prayer for recovery of possession. As per the

defendants'case the suit property originally belonged to

Enchan Ali and Saharjan Bibi. Saharjan Bibi died leaving

behind her only son namely - Enchan Ali. And thereafter

Enchan Ali died leaving behind five sons, two daughters

and wife. Predecessor in interest of the plaintiffs namely -

Fatema Bibi is one of the two daughters and another

daughter, five sons and the wife are defendants Nos. 1 to

7 in the Title Suit. The legal heirs Enchan Ali Mondal

inherited the property left by him. The defendant Nos.6 &

7 transferred their shares in the suit property in favour of

the defendant Nos.1 to 5 through a registered deed of gift

vide no.6380 dated 14.08.2001. Fatema Bibi being elder

sister of defendant no.1 to 5 was ill for sometime and gave

her daughter in marriage while she was ill. Fatema Bibi

had decided to transfer her share in the suit property to

her brothers i.e. the defendant Nos.1 to 5 and accordingly

offered her brothers i.e. defendants Nos. 1 to 5 to

purchase the suit property. Fatema Bibi was paid

Rs.20,000/- by the defendants for her share in the suit

property. Fatema Bibi orally gifted her share in the suit

property in favour of defendant Nos.1 to 5. Fatema Bibi

went to settlement camp and disclosed about the oral gift

and the said oral gift was made before the L.R. settlement

and in presence of some respectable persons amongst

whom there were some another friends. Fatema Bibi and

her legal heirs, i.e. the plaintiffs never entrusted the

defendants to get their names recorded in the L.R.R.O.R.

The plaintiffs are not enjoying the suit parties. The

plaintiffs are well aware about the oral gift and delivered

all possession in favour of the defendants. Defendant

Nos.6 & 7 are necessary parties as they have no right, title

and possession of the suit property. The respondent

Nos.1 to 4 prayed for dismissing the suit.

The First Appellate Court relied upon Exhibit 1 and

2, which, inter alia, include R.S.R.O.R and L.R.R.O.R. and

also on the basis of the documents marked as Exhibit-A

filed on behalf of the defendants arrived at a finding that

Enchan Ali Mondal and Saharjan Bibi were the original

owners to the extent of 16 annas and after the death of

Saharjan Bibi, her only son, Enchan Ali Mondal inherited

the share of the suit property which belonged to Saharjan

Bibi and, accordingly became owner of the entire suit

property. It was never disputed by either of the parties

that Enchan Ali died leaving behind five sons i.e.

appellants/defendants nos.1 to 5, two daughters, i.e.

Fatema Bibi, Rahila Bibi, i.e, the defendant No.7 and his

wife Rupjan Bibi, i.e. defendant No.6. The

respondents/plaintiffs are the legal heirs of Fatema Bibi.

Thus, it is admitted that Fatema Bibi or the

respondents/plaintiffs were entitled for share to the extent

of 1 anna 3 ganda 1 kora 1 kranti. The main issue

appears to be that the appellant Nos.1 to 5 have claimed

that Fatema Bibi transferred her share in the suit

property to the appellant Nos.1 to 5. The appellant Nos.1

to 5 have claimed to have obtained share of the Fatema

Bibi by way of purchase at a consideration of Rs.20,000/-.

However, they could not produce any deed of sale. Having

failed to establish the said transaction, the appellants

relied upon an oral Heba. However, the said oral Heba

could not be proved. The Trial Court as well as the

Appellate Court has considered that the appellants have

claimed that one of the two sisters and their mother gifted

their share to them by way of a registered gift deed.

However, the said deed was executed by Fatema in their

favour. The oral and documentary evidence further

revealed that the suit property was ejmali and joint

amongst the parties. In case of joint ownership or in case

of joint property, one co-sharer is regarded to be holder or

in possession of the share of the other co-sharers as held

in several decisions including the decision of our High

Court in The Midnapur Zamindary Co. Ld. V. Naresh

Narayan Roy & Ors. reported in 29 CWN page 34 in

which it is stated:

"........ Where lands in India are so held in common by co-sharers, each co-sharer is entitled to cultivate in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co- sharer is not an ouster of his co-sharers from their proprietary right as co-sharers in the lands. When co- sharers cannot agree as to how any lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands. No co- sharer can, as against his co-sharers obtain any jote right, rights of permanent occupancy, in the lands held in common, nor can be create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them.........."

On the basis of the aforesaid materials on record,

the Appellate Court upheld the decree in favour of the

plaintiffs. It appears that the judgment of the Trial Court

was based on proper appreciation of evidence both oral

and documentary. The Appellate Court on re-appreciation

of evidence, both oral and documentary concurred with

the findings of the Trial Court, the second appeal can be

admitted provided the Court is of the view that it involves

a substantial question of law.

The concurrent findings of facts unless are perverse

and/or contrary to the law are not to be lightly interfered

with. We are of the view that on the basis of the materials

on record the views taken by the Trial Court as well as the

Appellate Court on preponderance of probabilities, do not

call for any interference.

The second appeal does not involve any substantial

questions of law. Accordingly, the second appeal stands

dismissed at the admission stage.

We could have dismissed the second appeal at the

admission stage on the ground that none has appeared to

move the application for setting aside of the abatement

and for substitution, but we decided to dispose of the

matter on consideration of the materials on record.

The appeal is liable to be dismissed as the

abatement has not been set aside.

In view of dismissal of the second appeal, the

connected applications also stand dismissed.

I agree                                 (Soumen Sen, J.)


(Uday Kumar, J.)