Mst. Saleha Bibi vs Sk. Abdul Gaffar & Ors
2023 Latest Caselaw 1751 Cal

16.03.2023
 SL No.27
Court No.8
    (gc)
                           SAT 2445 of 2006

                             Mst. Saleha Bibi
                                   Vs.
                         Sk. Abdul Gaffar & Ors.

                                      Mr. Soumyajit Mishra,
                                      Mr. Balarko Sen
                                                ...for the Respondents.

None appears on behalf of the appellant. This

matter initially appeared in the warning list of cases on

29th November, 2022 with a clear indication that this

appeal shall be transferred to the regular list on 5th

December, 2022. Since then the matter had appeared on

a number of occasions. The second appeal could not be

taken up for consideration as the original file was not

traceable. The department has now been able to trace out

the file. The appellant has sufficient notice and/or

deemed to have notice of this matter being listed since

29th November, 2022. The second appeal is of the tender

year 2006. The Stamp Reporter in its report dated

21.11.2009 has stated that the appeal is not in form as

the certified copy of the Trial Court has not been filed with

the memo of appeal. The appellant has not taken any

step for curing the said defect. On this ground alone, we

could have dismissed the second appeal. However, we

propose to consider the matter in order to find out

whether this second appeal involves any substantial

question of law.

This second appeal is arising out of a judgment and

decree dated 17th April, 2006 passed by the First

Appellate Court in affirming the judgment and decree

dated 29th September, 1988 passed by the learned Trial

Court in T.S. No.81 of 1988. The Trial Court passed the

decree in a suit for partition and permanent injunction.

The Trial Court declared the share of the parties. The

said judgment and decree of the Trial Court affirmed by

the First Appellate Court. Briefly stated, the suit property

bearing plot no.182 originally belonged to Aminuddin.

After his death his two sons namely, Abdul Sattar (father

of the plaintiff) and Abdul Majid (father of defendant No.2)

inherited 7 annas each and their mother, Sarimon Bibi,

inherited 2 annas share in the suit property. After the

death of Sarimon Bibi, her 2 annas share devolved upon

the two sons in equal shares. Thereby, Abdul Sattar and

Abdul Majid became the owner of 8 annas share each in

the suit property. The plaintiff claims that after the death

of Abdul Sattar, his 8 annas share devolved upon his son

Abdul Gaffar (plaintiff), daughter (Rahima Bibi), the

defendant No.2 and wife Chandu Bibi. After the death of

Chandu Bibi, her share devolved upon the plaintiff and

the defendant No.2. After Sattar his 8 annas share

devolved on Chandu Bibi to the extent of 1 anna, Abdul

Gaffar (plaintiff) 4 annas 13 gondas 1 kara 1 kranti and

Rahima Bibi (defendant No.2) to the extent of 2 annas 6

gondas 2 karas 2 krantis. Since Chandu Bibi

predeceased Abdul Gaffar and Rahima Bibi (plaintiff and

defendant no.2, respectively), her 1 anna share inherited

from her husband devolved on the plaintiff to the extent of

13 gondas 1 kara 1 kranti and on the defendant no.2 to

the extent of 6 gondas 2 karas 2 krantis. Thus, 8 annas

share of Abdul Sattar devolved on Abdul Gaffar (plaintiff)

to the extent of 5 annas 6 gondas 2 karas 2 krantis and

Rahima Bibi (defendant no.2) to the extent of 2 annas 13

gondas 1 kara 1 kranti. After the death of Abdul Majid in

the year 1376 B.S., the plaintiff and the defendants were

in joint possession of the suit property. The defendant

Nos.1 and 2 were residing in the matrimonial home. The

plaintiff was in occupation of the south facing house and

was enjoying the usufructs of the trees standing on suit

property. However, all on a sudden, on 27.04.1986,

defendant No.1 suddenly came to the suit property with

outsiders and associates and jointly declared that the

plaintiff had no right, title and interest in the suit

property and the plaintiff was asked to vacate the suit

property. The defendant No.1 alleged to have tried to

dispossess forcibly the plaintiff from the suit property.

The plaintiff further alleged that the R.S. settlement

record of right stands in the name of the father of the

defendant No.1 to the extent of 16 annas is erroneous and

without any foundation and hence not binding on the

plaintiff. It was stated that the plaintiff's father and the

father of the defendant No.1 were full brothers and the

father of the plaintiff had implicit faith upon the father of

the defendant No.1 and he was in possession of the suit

property. The father of the defendant No.1 taking

advantage of the simplicity of the father of the plaintiff

managed to record his name to the extent of 16 annas in

the suit property in suppressing the true facts.

The defendants contested the said proceeding and

in their written statement they have alleged that Abdul

Majid had 16 annas share in the suit property. His

inherited share remained intact. He took settlement of 8

annas share of Abdul Sattar from the then landlord after

Abdul Sattar surrendered his 8 annas tenancy in the suit

property to the landlord. It appears from the judgment of

both the Courts that the appellant relied upon C.S.R.O.R.

in support of her claim. The contention of the appellant

appears to be that her father took settlement of the

tenancy of Abdul Sattar in the suit plot on 29th Magh,

1350 B.S. after surrender of the same by Abdul Sattar to

the landlord. R.S.R.O.R. stands in the name of the

appellant's predecessor and the subsequent record of

rights stand in the name of the appellant. The appellant

denied that the plaintiff was in occupation of south facing

house for enjoying the usufructs of the trees standing on

the suit property.

It was further alleged that Abdul Majid during his

life time executed a deed of gift in favour of the defendant

No.1 in respect of the suit property along with other

properties on 28.11.1967 and put the defendant No.1 in

possession of the suit property along with the other gifted

properties and by virtue of the deed of Hebanama, the

defendant No.1 had acquired right, title and interest in

respect of the suit plot and she was exercising all acts of

possession for almost 20 years. In the current settlement

record of rights, the name of the defendant No.1 was duly

recorded. The defendants, accordingly, clearly denied the

title of the plaintiffs.

The learned Trial Court on the basis of the

pleadings framed four issues. In deciding the suit, the

learned Trial Court has taken into consideration that it is

an admitted position that the suit plot was of Abdul Majid

and Abdul Sattar having 7 annas share each and Sarimon

Bibi having remaining 2 annas share therein. This fact

stands corroborated from Exhibit-1 and C.S. record of

right. On the death of Sarimon Bibi, her share devolved

upon her two sons to the extent of 8 annas share each.

Abdul Sattar died leaving behind the plaintiff (son),

defendant No.2 (daughter) and his wife Chandu Bibi. The

share of Chandu Bibi, if any, would devolve upon the

plaintiff and the defendant No.2. After the death of

Sattar, his 8 annas share devolved upon Chandu Bibi to

the extent of 1 anna, plaintiff 4 annas 13 gondas, 1 kara,

1 kranti and defendant No.2 to the extent of 2 annas 6

gondas, 2 karas 2 krantis. The devolution of the interest

on the parties upon the death of two sons of Aminuddin is

not in dispute. The defendants, however, contended that

the defendant No.1, Majid had 16 annas share in the suit

plot along with the structures and trees standing thereon

for the reason he had 8 annas share at the relevant time

and thereafter he took settlement of 8 annas share of

Sattar from the then landlord when Sattar left the village

after surrendering 8 annas share in the suit property to

the then landlord. The case of surrender, however, could

not be proved at the trial. In order to prove surrender, the

defendant No.1 had relied upon few rent receipts alleged

to have been issued by the landlord which were found to

be not genuine. Various discrepancies with regard to the

said rent receipts have been noticed by the Trial Court in

its judgment. Once the surrender is not proved, then

Majid could not have transferred interest to the extent of 8

annas which originally belonged to Sattar as he would

have no right in respect of the said 8 annas share. The

validity of the case would depend upon the surrender to

the extent of 8 annas share in favour of Majid or the

landlord as the case may be and on a plea being

established that Majid became the owner of 16 annas

share.

Both the Courts have taken into consideration that

the plaintiff's predecessor and the defendant's predecessor

were brothers by full blood and the C.S.R.O.R also stood

in their names. Any alteration to such record of rights

has to be satisfactorily explained as the exclusion of one

of the co-owners would be prejudicial to his interest. The

change in the R.S.R.O.R. by way of exclusion of one of the

brothers, as demanded by the beneficiary would claim to

have acquired interest of Abdul Sattar has to establish by

cogent evidence by surrendering of tenancy right by Abdul

Sattar in favour of Zamindar and followed by taking of

settlement of such tenancy by Abdul Majid from the

Zamindar. The defendants, however, could not establish

the aforesaid fact at the trial. The First Appellate Court

also discarded the rent receipts as forged and fabricated.

On the basis of the evidence, it is possible for both the

Courts to arrive at the said finding. The fountain head of

the claims of the appellant's exclusive title and possession

in the suit property is Exhibit-D series, which are few rent

receipts. Since the said rent receipts are found to be

doubtful, forged and fabricated, no title could pass in

favour of the respondents based on such receipts.

The concurrent findings of facts are based on

proper appreciation of fact and law. The findings of facts

unless are perverse, the Court by considering the

admission of the second appeal based on concurrent

findings of facts shall not admit such appeal.

In view thereof, the second appeal being SAT 2445

of 2006 stands dismissed at the admission stage.

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.

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