Calcutta High Court (Appellete Side)
Dolgobinda Mahato & Ors vs Golok Mahato & Ors on 19 January, 2023
19.01.2023
SL No.47
Court No.8
(gc)
SAT 283 of 2016
CAN 1 of 2016 (Old No: CAN 7909 of 2016)
Dolgobinda Mahato & Ors.
Vs.
Golok Mahato & Ors.
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
appeal is of the year 2016. The appellants are not
represented.
The appeal is defective. The Stamp Reporter in its
report dated 19th July, 2016 has referred to various
defects. In spite of due notice, no attempt has been made
to cure the defects.
The appellate decree dated 29th February, 2016
affirming the judgment and decree of the Trial Court
dated 4th May, 2012 in a suit for declaration and
permanent injunction is a subject matter of challenge in
this second appeal. The declaration is dependent upon an
adjudication in respect of the gift. Briefly stated that the
suit land and other land were previously belonged to one
Shraban Mahato who died leaving behind his wife/Alta
and widowed mother Jamuna. Alta and widowed mother
Jamuna have inherited the property of Shraban Mahato
and they are in joint mess. After the death of Jamuna,
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her Nanad/Bhanu and sons of Nanad namely, Thakurdas
came and started to reside there and used to cultivate the
land of Shraban. It is also stated that Bhanu died leaving
her four sons including Thakurdas but other three
brothers stayed in the village Bongabari and used to look
after their own land. Taking the advantage of innocence
of Alta, Thakurdas, set up his own title by recording his
name during R.S. Operation alleging that Alta had got
remarried after the death of Shraban. On the strength of
such forcible entry, Thakurdas dispossessed Alta from the
suit land and other land in Baishakh, 1371 B.S.
Immediately thereafter Alta has filed a suit for recovery of
possession which was finally disposed of and Alta got her
property back including the suit land on 10th May, 1975.
On 6th September, 1975, Alta Mahato sold schedule land
along with other land to Niranjan Mahato and Anila
Mahatani by a registered sale deed. Subsequently
Niranjan and Anila sold schedule land property to Lilu
Mahato/plaintiff No.3. Niranjan died leaving behind three
sons and widowed wife who are the proforma defendant
Nos.7 to 10 and they have sold the schedule -(b) land to
the plaintiffs by executing and registering a sale deed in
the year 2006. Since purchase the plaintiffs are in
possession of their property but on 23rd September, 2008
and 11th October, 2008 they have received notices under
Section 144 of the Cr.P.C. from where they came to know
that the defendants have purchased the suit land from
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Thakurdas or his descendant. Since then the principal
defendants are threatening the plaintiffs that they will not
allow the plaintiff to cultivate the suit land. The cause of
action arose on and from 23rd September, 2008 and 11th
October, 2008. In order to establish his title, the plaintiff
has filed Exhibit-1: Registered sale deed no.4976 dated
18-10-06
, Exhibit-1/1, signature of the deed writer of
registered sale deed no.4976 dated 18-10-06, Exhibit -2:
Registered sale deed no. 4333 dated 27-09-05, Exhibit -
2/1: Signature of the deed writer of Registered sale deed
no.4333 dated 27-09-05. Exhibit-3: Certified copy of
Judgment and decree in T.S. Case no.20/1967. Exhibit-
4: Certified copy of Judgment and decree in T.S. Case
No.139/1968. Exhibit-5: Certified copy of the order
passed by Hon'ble High Court Kolkata, dated 5-02-1990.
Exhibit-6: Certified copy of the deed being no.9853 for
1975 on 6-09-75. Exhibit-7: Carbon copy of the notice in
Misc Case no.477/08. Exhibit-8: Carbon copy of the
notice in Misc Case no.509/08 and produced oral
evidence.
Before the Trial Court, the defendants have
contended that the suit land previously belonged to one
Natu Mahato who is the father of Shraban and Bhanu.
Shraban died leaving his widowed mother and wife Bhanu
also died leaving her five sons including Thakurdas. On
the request of Alta the name of Thakurdas was recorded
during R.S. Operation. Thakurdas Mahato was in
possession of the suit land as the delivery of the
possession by the order of the Court is merely a paper
transaction. The deed in question is forged. Niranjan and
Anila never possessed the suit land. The alleged deed is
forged one. On July, 2006 the defendants have
purchased the suit land from the wife of Thakurdas and
since then they are in possession of the schedule (b) land.
No cause of action arose. It appears that Alta has filed a
suit for recovery of possession which was finally disposed
of and Alta got her property back including the suit land.
This particular contention of the plaintiff is supported by
Exhibit-3: Certified Copy of Judgment and decree in T.S.
Case No.20/1967, Exhibit - 4: Certified Copy of Judgment
and decree in T.S. Case No.139/1968. Exhibit-5:
Certified Copy of the order passed by Hon'ble High Court
Kolkata, dated 5-02-1990.
From the aforesaid mentioned documents produced
by the plaintiffs, it can also be seen that Alta is the
rightful owner of the suit land along with some other land.
On 6th September, 1975, Alta Mahato sold schedule land
along with other land to Niranjan Mahato and Anila
Mahatani by a registered sale deed. To support this
contention the plaintiff has filed Exhibit-6: Cerfied Copy of
the deed being no.9853 for 1975. From the said
document it is crystal clear that Alta Mahato sold
schedule land along other land of Niranjan Mahato and
Anila Mahatani.
The plaintiff contended that Niranjan and Anila sold
schedule A property to Lilu Mahato/plaintiff no.3. To
support this contention the plaintiff has filed Exhibit-2:
Registered sale deed no.4333 Dated 27-09-2005, Exhibit -
2/1: Signature of the deed writer of Registered sale deed
no.4333 dated 27-09-2005. The plaintiff further
contended that Niranjan died leaving behind three sons
and widowed wife who are the proforma defendant nos.7
to 10 and they have sold the schedule -B land to the
plaintiffs by executing and registering a sale deed in the
year 2006. To support this contention the plaintiff has
filed Exhibit-1: Registered sale deed no.4976 dated 18-10-
06, Exhibit - 1/1: Signature of the deed writer of
Registered sale deed no.4976 dated 18-10-06.
The oral and documentary evidence clearly shows
that the plaintiff No.3 has been able to establish his right,
title and interest in respect of the suit property. The First
Appellate Court on re-appreciation of the aforesaid
evidence affirmed the order of the learned Trial Court. In
concurring with the said finding, the First Appellate Court
has taken into consideration the satisfaction of the decree
as would be evident from Exhibit-6, Title Execution Case
No.51/1968 by delivery of possession on 10th May, 1975.
The plaintiffs were also able to establish that they were in
possession of Alta after they purchased the property.
The concurrent findings of facts arrived at by both
the Courts are based on both oral and documentary
evidence and is a probable and possible conclusion that
can be arrived at on the basis of such evidence.
In view thereof, the second appeal stands dismissed
at the admission stage.
In view of dismissal of the second appeal at the
admission stage, the connected application also stands
dismissed.
However, there shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
