Shibtala Palli Sangha & Ors vs Mohanlal Roy & Anr
2023 Latest Caselaw 1556 Cal

02.03.2023
SL No.57
Court No.8
    (gc)


                         SAT 103 of 2013
             CAN 2 of 2013 (Old No: CAN 2834 of 2013)
                          CAN 3 of 2023

                   Shibtala Palli Sangha & Ors.
                                Vs.
                      Mohanlal Roy & Anr.




                 The plaintiffs/appellants are not represented, nor

             any accommodation is prayed for on their behalf.

                 The appeal is pending since March, 2023 for

             admission.    No attempt has been made to move the

             second appeal. However, this matter is listed today for

             admission. In absence of the learned Counsel for the

             appellants, we read the judgment of the Trial Court as

             well as the First Appellate Court along with the grounds

             of appeal.

                 The appellate decree dated 02.06.2012 affirming the

             judgment     and   decree   of   the   Trial   Court   dated

             31.10.2010 in a suit for declaration is a subject matter

             of challenge in this second appeal.            The plaintiffs

             claimed to be the persons from the locality were

             Radharani Dey @ Radha Rani Dasi, the original owner

             of the property used to reside. She was issueless. In

             the year 1965, due to her old age she handed over the

             seva puja to the local Hindu people of Shibtala Lane,

             Sheoraphuli and since then the said property is being

             looked after and managed by the local people and they
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used to perform various religious functions and rites in

the suit property. In the first half of 1966, Radharani

left for Brindaban and since then the property is being

looked after by the plaintiffs.   It was alleged that the

defendants are the local persons and more particularly,

the defendant No.1 was the Secretary of the Committee

of Shibtala Lane Committee and taking advantage of the

helplessness    of    Radharani   he   in   collusion   with

defendant No.2 and some other persons managed to

have one sale deed executed and registered in their

favour on 7th March, 2000 and on the basis of the

fraudulent deed, the defendants are now trying to

disturb the possession of the plaintiffs and also creating

disturbance in the daily seva puja and maintenance of

the property.       The defendants contested the suit by

filing the written statement.     According to them, plot

No.1237 under Khatian No.1698 of Mouza Sheoraphully

has an area of 15 sataks and not 6 cottah 11 chittak 30

sqft. as alleged. The temple of Dharmaraj and Shiva is

situated in a plot of land lying to the north of Shibtala

land and temple of Narayan is situated outside the A

schedule property purchased by the defendant.           The

temple of Narayan is a private personal temple of Smt.

Radha Rani Dasi who gifted the entire property with

temple to Sri Gangadhar De and Probhat Kumar De by

a registered deed of gift in the year 1968 and thereafter

she died in 1972. These persons used to possess the
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entire property including temple and deity Narayan and

performed seva puja by appointing priest and they

transferred A schedule property to the defendants

without the temple of Narayan.       The defendants have

meticulously stated that the transactions and disclosed

the documents in support of their possession. The Trial

Court on the basis of the pleadings and the evidence on

record had arrived at a finding that the claim of the

plaintiffs in the suit over A schedule property based on

oral deed of gift by Radha Rani on the day of Asthami,

1965 was contrary to the proof as an oral gift is not

recognized in the law.       The learned Trial Judge has

referred to Section 123 of the Transfer of Property Act

and Section 17(1)(a) of the Registration Act, 1908. The

learned Trial Judge in deciding the matter in favour of

the plaintiffs had taken into consideration the certified

copy of the deed of gift dated 13.09.1968 marked as

Exhibit-K whereby Radha Rani Dasi gifted the property

in favour of her husband's younger brother, late Naren

De.   The death certificate of Naren De was also

produced and marked as Exhibit-F.         The A schedule

property was transferred to the defendants by a

registered deed of sale dated 7th March, 2000 by

Gangadhar Dey and Prabhat Kumar Dey for a valuable

consideration.       Prabhat is the son of late Naren De.

Exhibits-B and B1 are the mutation certificate which

appeared the name of the defendants. The L.R. Parchas
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were also in the name of the defendants. The property

was mutated in the name of the defendants.             All the

aforesaid exhibits would go to show that the defendants

have become the lawful owner of the suit property. It

was on such consideration, the suit was dismissed. The

First Appellate Court in concurring with the findings of

the learned Trial Court has observed that in the plaint it

has been stated by the plaintiffs that they got the suit

property by way of an oral gift which in law is not

permissible. From the evidence of P.W-1 it appears that

total area of the suit property (plot No.1237) was 15

decimal and suit is filed in respect of 10/10, 1/2

decimal and they are in possession in rest portion

except property but he has no document to show that

Radha Rani Dey has executed a gift deed in respect of

the suit property in favour of general public. It further

appears     from      the    evidence    of    P.W-1       that

defendants/respondents purchased the rest portion

except the temple of Lord Narayan. The temple of Lord

Dharmaraj and Lord Shiva are situated in one plot and

temple of Lord Narayana is situated in suit plot. This

clearly signifies that plaintiffs/appellants are not

possessing the suit property.

The learned First Appellate Court has considered

Exhibit-K which was challenged by the plaintiffs. D.W-

4 was the employee of District Registry Office who

proved the said certified copy. The said deed of gift was

executed on 13.09.1968 and by this deed Radhika Bala

Dasi @ Radha Rani Dasi gifted the suit property along

with other properties to Gangadhar Dey, Provat Kiren

Dey and Mritunjoy Dey. A death certificate of Radhika

Bala Dasi was filed and that was marked as Exhibit-F,

which shows that she died on 09.06.1972. In the

written statement it is mentioned that Radha Rani @

Radhika Bala executed the deed of gift. The initial

burden to prove the gift was upon the plaintiffs but,

except the pleadings no such evidence is adduced in

support of their contention. Whereas the defendant

produced the certificated copy of deed of gift in evidence

and that has been proved in the evidence of D.W-4. At

the time of exhibiting the deed no challenge was made.

This D.W-4 has been cross-examined by the plaintiffs.

So, the learned Court below did not find any reason to

disbelieve the document where contrary is not proved.

Exhibit-J is the R.S.R.O.R. of Khatian No.1698 of Mouza

Sheoraphully, from which it appears that plot no.1237

measuring about 15 decimal was recorded in the name

of Radha Rani Dasi. The assessment register of

Baidyabati Municipality of the year 1994 to 1995 and

2002-03 were marked as Exhibit-H and Exhibit-I

respectively, where the name of Gangadhar Dey and

Provat Kiran Dey are found. The appellants/plaintiffs in

the pleadings stated that defendant no.1 and defendant

no.2 with a view to grab the A schedule property and

other properties in collusion with other persons namely

Provat Kr. Dey and Gangadhar Dey got the suit property

executed in favour of them by a sale deed dated 7th

March, 2000, which is a false, fictitious, fabricated and

without consideration and defendants have got no right,

title and interest over the suit property. However,

except pleadings no evidence is led by the plaintiffs to

that effect. Provat Kiran Dey and Gangadhar Dey

executed a deed of sale in favour of defendants in which

it was marked as Exhibit-A. The sketch map annexed

with deed Exhibit-A shows that the red marked

boundary portion to the property was sold to the

defendants excluding the Lord Narayan Temple.

Exhibit-5 is the commissioner's report from which it

appears that Lord Narayan Temple is situated on the

eastern side of A schedule property. There are two

access or passages to enter into the temple of Lord

Narayan; one from the northern side and other from the

eastern side. Exhibit-B and Exhibit B(i) are the

mutation certificates in the name of defendants and

Exhibit-C and Exhibit-C(i) are the L.R.R.O.R. in the

name of the defendants. The documents support the

case of the defendants.

The aforesaid discussion would clearly show that

both the Trial Court and the First Appellate Court have

carefully examined the evidence and on proper

appreciation of the evidence dismissed the suit. On the

basis of the evidence on record, it cannot be said that

the findings arrived at by the Trial Court or the First

Appellate Court was perverse or based on no evidence.

The civil matter is decided on the basis of the

preponderance of probabilities. On the basis of the

evidence on record, the findings arrived at was possible.

We do not find any infirmity in the order of the Trial

Court or the First Appellate Court.

For the reasons aforesaid, we do not find any

reason to admit the second appeal as it does not involve

any substantial question of law.

Accordingly, the second appeal stands dismissed at

the admission stage.

In view of dismissal of the second appeal at the

admission stage, the connected applications also stand

dismissed.

However, there shall be no order as to costs.

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